Document:-
A/CN.4/267
Sixth report on succession of States in respect of matters other than treaties, by
Mr. Mohammed Bedjaoui, Special Rapporteur - draft articles with commentaries on
succession to public property
Topic:
Succession of States in respect of matters other than treaties
Extract from the Yearbook of the International Law Commission:-
1973 , vol. II
Downloaded from the web site of the International Law Commission
(http://www.un.org/law/ilc/index.htm)
Copyright © United Nations
SUCCESSION OF STATES
IN RESPECT OF MATTERS OTHER THAN TREATIES
[Agenda item 3]
DOCUMENT A/CN.4/267
Sixth report on succession of States in respect of matters other than treaties,
by Mr. Mohammed Bedjaoui, Special Rapporteur
Draft articles with commentaries on succession to public property
[Original text: French]
[20 May 1973]
CONTENTS
Page
Abbreviations
9
Explanatory note: italics in quotations
9
Paragraphs
Part One. Preliminary provisions relating to succession of States in respect of matters other than treaties . .
1-2
Article 1. Scope of the present articles
Article 2. Cases of succession of States covered by the present articles
Article 3. Use of terms
9
9
9
9
Paragraphs
Part Two. Draft articles on succession to public property
3-4
9
I. PRELIMINARY PROVISIONS
Article 4. Sphere of application of the present article
Article 5. Definition and determination of public property
9
9
II. GENERAL PROVISIONS
Article 6. Transfer of public property as it exists
Article 7. Date of transfer of public property
Article 8. General treatment of public property according to ownership
10
10
10
III. PROVISIONS COMMON TO ALL TYPES OF SUCCESSION OF STATES
Article 9. General principle of the transfer of all State property
Article 10. Rights in respect of the authority to grant concessions
Article 11. Succession to public debt-claims
10
10
10
IV. PROVISIONS RELATING TO EACH TYPE OF SUCCESSION OF STATES
Section 1. Partial transfer of territory
Article 12. Currency and the privilege of issue
Article 13. Treasury and public funds
Article 14. Archives and public libraries
Article 15. Property situated outside the transferred territory
3
10
10
10
10
Yearbook of the International Law Commission, 1973, vol. II
CONTENTS (continued)
Page
Section 2. Newly independent States
Article 16. Currency and the privilege of issue
Article 17. Public funds and Treasury
Article 18. Archives and public libraries
Article 19. Property situated outside the territory of the newly independent States
10
11
11
11
Section 3. Uniting of States and dissolution of unions
Article 20. Currency and the privilege of issue
Article 21. Public funds and Treasury
Article 22. Archives and public libraries
Article 23. Property situated outside the territory of the union
11
11
11
11
Section 4. Disappearance of a State through partition or absorption
Article 24. Currency and the privilege of issue
Article 25. Public funds and Treasury
Article 26. Archives and public libraries
Article 27. Property situated outside the absorbed or partitioned territory
11
11
11
11
Section 5. Secession or separation of one or more parts of one or more States
Article 28. Currency and the privilege of issue
Article 29. Public funds and Treasury
Article 30. Archives and public libraries
Article 31. Property situated outside the detached territory
12
12
12
12
V. PROVISIONS RELATING TO PUBLIC ESTABLISHMENTS
Article 32. Definition of public establishments
Article 33. Public establishments of the transferred territory
Article 34. Property of the State in public establishments
Article 35. Case of two or more successor States
12
12
12
12
VI. PROVISIONS CONCERNING TERRITORIAL AUTHORITIES
Article
Article
Article
Article
36. Definition of territorial authorities
37. Public property proper to territorial authorities
38. Property of the State in territorial authorities
39. Divided territorial authorities
12
12
12
12
VII. PROPERTY OF FOUNDATIONS
Article 40. Property of foundations
12
Part Three. Commentaries and observations on the preliminary provisions on succession of States in respect
of matters other than treaties
Article 1. Scope of the present articles
Commentary
13
13
Article 2. Cases of succession of States covered by the present articles
Commentary
13
14
Article 3. Use of terms
Commentary
15
15
A. Definition of succession of States
B. Definition of the terms "predecessor State" and "successor State"
C. Other terms used
15
15
15
Succession of States in respect of matters other than treaties
CONTENTS (continued)
Paragraphs
Page
Part Four. Draft articles on succession to public property, with commentaries
5-51
16
INTRODUCTION
5-15
16
I. PRELIMINARY PROVISIONS
17
Article 4. Sphere of application of the present articles
Commentary
17
17
Article 5. Definition and determination of public property
Commentary
17
17
A. Public property
B. Rights and interests
C. Unliquidated claims and
17
19
19
rights
Paragraphs
II. GENERAL PROVISIONS
16-19
19
Article 6. Transfer of public property as it exists
Commentary
19
19
Article 7. Date of transfer of public property
Commentary
19
19
Article 8. General treatment of public property according to ownership
Commentary
20
20
III. PROVISIONS COMMON TO ALL TYPES OF SUCCESSION OF STATES
22
Article 9. General principle of the transfer of all State property
Commentary
22
22
Article 10. Rights in respect of the authority to grant concessions
Commentary
24
24
A. Definition of a "concession"
1. A concession is an act of the public authorities
2. A concession is an act granting permission to manage a public service or exploit a natural resource
3. The concessionaire is a private person or enterprise or sometimes even a State
24
25
26
26
B. "Rights in respect of the authority to grant concessions" and their legal nature
C. Obligations in respect of concessions, a question to be left pending
26
27
Article 11. Succession to public debt-claims
Commentary
28
28
A. Introduction
B. Patrimonial rights "defined by law"
C. Observations on article 11
28
29
29
Paragraphs
IV. Provisions relating to each type of succession of States
Introduction: Types considered
A. Succession without the creation or disappearance of a State (case of partial transfer of
territory)
B. Succession by creation of a State not entailing the disappearance of the predecessor State
(case of newly independent States)
C. Succession by creation of a State and disappearance of the predecessor State or States (cases
of uniting of States, dissolution of unions, merger and creation of "composite" States) . . .
D. Succession without the creation of a State but entailing the disappearance of the predecessor
E. Special case of separation of part of a State (secession)
20-51
29
20-51
29
31-32
31
33-38
31
39-43
44-48
49-51
32
33
33
Yearbook of the International Law Commission, 1973, vol. II
CONTENTS (continued)
Page
Section!. Partial transfer of territory
Article 12. Currency and the privilege of issue
Commentary
A.
B.
C.
D.
Introduction
The privilege of issue
Currency
Case of partial transfers of territory to various pre-existing successor States
Article 13. Treasury and public funds
Commentary
A. Public funds
1. State public funds
2. Funds proper to the transferred territory
B. Treasury
Article 14. Archives and public libraries
Commentary
34
34
34
34
35
35
35
36
36
36
36
36
37
37
37
A. Definition of items affected by the transfer
B. The principle of the transfer of archives to the successor State
1. Archives of every kind
2. Archives as an instrument of evidence
3. Archives as an instrument of administration
38
38
38
38
38
C. The archives-territory link
D. Archives situated outside the territory
1. Archives which have been removed
2. Archives established outside the territory
39
39
40
41
E.
F.
G.
H.
42
42
42
42
Problem of the "ownership" of archives
Special obligations of the successor State
Time-limits for handing over the archives
Transfer and return free of cost
Article 15. Property situated outside the transferred territory
43
Commentary
43
A. Introduction
43
B. Property proper to the transferred territory which is situated outside that territory
44
1. Property proper to the territory which is situated in the predecessor State
Non-transferability of ownership of property of this kind
Modification of the legal regime governing property of this kind
44
44
44
2. Property proper to the transferred territory which is situated in a third State
44
C. Property of the predecessor State which is situated outside the territory retained by that State . . .
Section 2. Newly independent States
44
45
Article 16. Currency and the privilege of issue
Commentary
45
45
Article 17. Public funds and Treasury
Commentary
47
47
A. Public funds
1. Funds proper to the territory
2. State funds
47
47
47
B. Treasury
47
Succession of States in respect of matters other than treaties
CONTENTS (continued)
Page
Article 18. Archives and public libraries
Commentary
47
48
A. The archives-territory link
B. Archives situated outside the territory that has become independent
1. Archives which have been removed
2. Archives established outside the territory
48
48
48
49
C. Special obligations of the newly independent States
49
Article 19. Property situated outsuie the territory of the newly independent State
Commentary
49
50
A. Property proper to the territory that has become independent
1. Property which is situated in the former metropolitan country
2. Property which is situated in a third State
50
50
51
B. Property belonging to the predecessor State which is situated in a third State
52
Section 3. Uniting of States and dissolution of unions
52
Article 20. Currency and the privilege of issue
Commentary
52
52
Article 21. Public funds and Treasury
Commentary
52
52
Article 22. Archives and public libraries
Commentary
53
53
Article 23. Property situated outside the territory of the union
Commentary
54
54
Section 4. Disappearance of a State through partition or absorption
54
Article 24. Currency and the privilege of issue
Commentary
54
54
Article 25. Public funds and Treasury
Commentary
55
55
Article 26. Archives and public libraries
Commentaries and observations
55
55
Article 27. Property situated outside the absorbed or partitioned territory
Commentary
55
55
Section 5. Secession or separation of one or more parts of one or more States
57
Article 28. Currency and the privilege of issue
Commentary
57
57
Article 29. Public funds and Treasury
Commentary
57
57
Article 30. Archives and public libraries
Commentary
57
57
Article 31. Property situated outside the detached territory
Commentary
58
58
Yearbook of the International Law Commission, 1973, vol.
CONTENTS (continued)
Page
V. PROVISIONS RELATING TO PUBLIC ESTABLISHMENTS
Article 32. Definition of public establishments
Commentary
A.
B.
C.
D.
The public establishment administers a public service
The public establishment may engage in an economic activity
The establishment of public utility or general interest
The public or public utility character
1. Link with the population
2. Link with the economy of the territory
59
59
59
59
60
60
60
60
60
E. Criteria for a definition
1. Arbitral award concerning the interpretation of article 260 of the Treaty of Versailles
2. Decision of the United Nations Tribunal in Libya
3. Decision of the P.C.IJ. in a case relating to a Hungarian public university establishment . . . .
60
60
61
61
F. Determination by treaty
61
Article 33. Public establishments of the transferred territory
Commentary
61
62
Article 34. Property of the State in public establishments
Commentary
62
62
A.
B.
C.
D.
Automatic and complete succession
Succession limited to the property of public establishments situated in the territory
Succession on condition of purchase
Temporary use of property by the predecessor State
Article 35. Case of two or more successor States
Commentary
VI. Provisions concerning territorial authorities
63
64
64
65
65
66
66
Article 36. Definition of territorial authorities
Commentary
66
66
Article 37. Public property proper to territorial authorities
Commentary
67
67
Article 38. Property of the State in territorial authorities
Commentary
68
68
Article 39. Divided territorial authorities
Commentary
68
68
VII. PROPERTY OF FOUNDATIONS
Article 40. Property of foundations
Commentary
A.
B.
C.
D.
Patrimonial situation unchanged
Exceptions to the principle
Property of the State in foundations
The property of the Moslem Institute and of the Mosque in Paris
69
69
69
69
71
72
72
Succession of States in respect of matters other than treaties
ABBREVIATIONS
I.C.J.
I.C.J. Reports
P.C.I.J.
P.C.I.J., Series A/B
International Court of Justice
I.C.J., Reports of Judgments, Advisory Opinions and Orders
Permanent Court of International Justice
P.C.I.J., Judgments, Orders and Advisory Opinions
EXPLANATORY NOTE: ITALICS IN QUOTATIONS
An asterisk inserted in a quotation indicates that, in the passage immediately preceding the
asterisk, the italics have been supplied by the Special Rapporteur.
Part One
Part Two
Preliminary provisions relating to succession of
States in respect of matters other than treaties
Draft articles
on succession to public property
1. The following provisions relate to the whole field of
"succession of States in respect of matters other than
treaties" and should consequently precede consideration
of succession of States in respect of public property. They
are, of necessity, fragmentary and will be supplemented
as the International Law Commission progresses in its
work in the various fields under consideration.
3. In his third, 1 fourth a and fifth 3 reports, the Special
Rapporteur prepared a set of draft articles, with commentaries and observations, on succession of States in
respect of public property.
2. For the time being, these preliminary provisions
comprise the following articles:
4. Having reconsidered his draft and deemed it necessary to take into account the work of the International
Law Commission in the field of succession of States in
respect of treaties, he submits below the following draft
articles:
Article 1. Scope of the present articles
I. PRELIMINARY PROVISIONS
The present articles apply to the effects of succession of States in
respect of matters other than treaties.
Article 4. Sphere of application of the present articles
Article 2. Cases of succession of States
covered by the present articles
The present articles apply only to the effects of a succession of
States occurring in conformity with international law and, in particular,
the principles of international law embodied in the Charter of the
United Nations.
Article 3. Use of terms
For the purposes of the present articles:
(a) "Succession of States" means the replacement of one sovereignty
by another with regard to its practical effects on the rights and obligations of each for the territory affected by the change of sovereignty;
(b) "Predecessor States" means the State which has been replaced
by another State on the occurrence of a succession of States;
(c) "Successor State" means the State which has replaced another
State on the occurrence of a succession of States.
The present articles relate to the effects of succession of States in
respect of public property.
Article 5. Definition and determination
of public property
For the purposes of the present articles, "public property" means
all property, rights and interests which, on the date of the change of
sovereignty and in accordance with the law of the predecessor State,
were not under private ownership in the territory affected by the
change of sovereignty or which are necessary for the exercise of
sovereignty by the successor State in the said territory.
1
Yearbook... 1970, vol. II, p. 131, document A/CN.4/226.
Yearbook ... 1971, vol. II (Part One), p. 157, document A/CN.4/
247 and Add.l.
3
Yearbook... 1972, vol. II, p. 61, document A/CN.4/259.
2
10
Yearbook of the International Law Commission, 1973, vol. II
II. GENERAL PROVISIONS
Article 6. Transfer of public property as it exists
1. The predecessor State may transfer a territory only on the
conditions upon which that State itself possesses it.
2. In accordance with the provisions of the present articles, public
property shall be transferred to the successor State as it exists and
with its legal status.
2. The successor State shall, when the territorial change is effected,
become the beneficiary of the public debts of all kinds receivable by
the predecessor State by virtue of the exercise of its sovereignty or
of its activity in the territory concerned.
IV. PROVISIONS RELATING TO EACH TYPE
OF SUCCESSION OF STATES
SECTION 1.
PARTIAL TRANSFER OF TERRITORY
Article 7. Date of transfer of public property
Article 12. Currency and the privilege of issue
Save where sovereignty has been restored and is deemed to be
retroactive to the date of its termination or where the date of transfer
is, by treaty or otherwise, made dependent upon the fulfilment of a
suspensive condition or simply upon the lapse of a fixed period of
time, the date of transfer of public property shall be the date on which
the change of sovereignty
1. The privilege of issue shall belong to the successor State throughout the transferred territory.
2. Currency, gold and foreign exchange reserves, and, in general,
monetary tokens of all kinds circulating or stored in the territory shall
pass to the successor State.
3. The assets of the central institution of issue in the predecessor
State, including those allocated for the backing of issues for the
territory transferred, shall be apportioned in proportion to the volume
of cunency circulating or held in the territory in question.
(a) occurs dejure through the ratification of devolution agreements,
or
(b) is effectively carried out in cases where no agreement exists or
reference is made in an agreement to the said effective date.
Article 13. Public funds and Treasury
Article 8. General treatment of public property
according to ownership
1. Public funds, liquid or invested, belonging to the predecessor
State and situated in the transferred territory, shall pass into the
AH other conditions established by the present articles being fulfilled. patrimony of the successor State.
2. Irrespective of where they are situated, public funds, liquid or
(a) Public or private property of the predecessor State shall pass
invested, which are proper to the transferred territory shall continue
within the patrimony of the successor State;
to be allocated and to belong to the transferred territory.
(6) Public pioperty of authorities or bodies other than States shall
3. Upon closure of the public accounts relating to Treasury operpass within the juridical order of the successor State;
ations in the transferred territory, the successor State shall receive
(c) Property of the territory affected by the change of sovereignty the assets of the Treasury and shall assume responsibility for costs
shall pass within the juridical order of the successor State.
relating thereto and for budgetary and Treasury deficits. It shall also
assume the liabilities on such terms and in accordance with such rules
as apply to succession to the public debt.
III. PROVISIONS COMMON TO ALL TYPES
OF SUCCESSION OF STATES
Article 14. Archives and public libraries
Article 9. General principle
1. Archives and public documents of every kind relating directly or
of the transfer of all State property
belonging to the transferred territory, and public libraries of that
Property necessary for the exercise of sovereignty over the territory territory shall, irrespective of where they are situated, follow the
affected by the succession of States shall devolve, automatically and transferred territory.
without compensation, to the successor State.
2. The successor State shall not refuse to hand over copies of such
items to the predecessor State or to any third State concerned, upon
the request and at the expense of the latter State, save where they
Article 10. Rights in respect of the authority
affect the security or sovereignty of the successor State.
to grant concessions
1. For the purposes of the present article, the term "concession"
means the act whereby the State confers, in the territory within its
national jurisdiction, on a private enterprise, a person in private law
or another State, the management of a public service or the exploitation of a natural resource.
2. Irrespective of the type of succession of States, the successor
State shall replace the predecessor State in its rights of ownership of
all public property covered by a concession in the territory affected by
the change of sovereignty.
3. The existence of devolution agreements regulating the treatment
to be accorded to concessions shall not affect the right of eminent
domain of the State over public property and natural resources of its
territory.
Article 11. Succession to public debt-claims
1. Irrespective of the type of succession of States, public debtclaims which are proper to the territory affected by the change of
sovereignty shall remain in the patrimony of that territory.
Article 15. Property situated outside
the transferred territory
1. Subject to the application of the rules relating to recognition,
public property proper to the transferred territory which is situated
outside that territory shall pass within the juridical order of the
successor State.
2. The ownership of property belonging to the predecessor State
which is situated in a third State shall devolve to the successor State
in the proportion indicated by the contribution of the transferred
territory to the creation of such property.
SECTION 2.
NEWLY INDEPENDENT STATES
Article 16. Currency and the privilege of issue
1. The privilege of issue shall belong to the new sovereignty throughout the newly independent territory.
Succession of States in respect of matters other than treaties
2. Currency, gold and foreign exchange reserves, and, in general,
monetary tokens of all kinds which are proper to the territory concerned shall pass to the successor State.
3. In consideration of the foregoing, the successor State shall
assume responsibility for the exchange of the former monetary
instruments, with all the legal consequences which the substitution
of currency entails.
Article 17. Public funds and Treasury
1. Public funds, liquid or invested, which are proper to the territory
that has become independent shall remain the property of that territory, irrespective of where they are situated.
2. Public funds of the predecessor State, liquid or invested, which
are situated in the territory that has become independent shall pass
into the patrimony of that territory.
3. The rights of the Treasury of the territory that has become
independent shall not be affected by the change of sovereignty, vis-avis the predecessor State or otherwise.
4. The obligations of the Treasury of the territory that has become
independent shall be assumed by that territory on such terms and in
accordance with such rules as apply to succession to the public debt.
Article 18. Archives and public libraries
1. Archives and public documents of every kind relating directly or
belonging to the territory that has become independent, and public
libraries of that territory, shall, irrespective of where they are situated,
be transferred to the newly independent State.
2. The newly independent State shall not refuse to hand over copies
of such items to the predecessor State or to any third State concerned,
upon the request and at the expense of the latter State, save where
they affect the security or sovereignty of the newly independent State.
Article 19. Property situated outside
the territory of the newly independent State
1. Public property proper to the territory that has become independent which is situated outside that territory shall remain its property
upon its accession to independence.
2. Public property belonging to the predecessor State which is
situated in a third State shall be apportioned between the predecessor
State and the newly independent State proportionately to the latter's
contribution to the creation of such property.
SECTION 3.
UNITING OF STATES AND DISSOLUTION OF UNIONS
Article 20. Currency and the privilege of issue
1. The privilege of issue shall belong to the successor State throughout the territory of the union or of each State in the event of dissolution
of the union.
2. In the event of dissolution of the union, the assets of the joint
institution of issue shall be shared pro parte between the successor
States, which in consideration of the foregoing shall assume responsibility for the obligations relating to the substitution of new currencies
for the former currency.
Article 21. Public funds and Treasury
1. The union shall receive as its patrimony the public funds and
Treasuries of each of its constituent States except where the degree of
their integration in the union or treaty provisions allow each State to
retain all or part of such property.
2. In the event of dissolution of the union, the public funds and
Treasury of the union shall be apportioned equitably between its
constituent States.
11
Article 22. Archives and public libraries
1. Except where otherwise specified in treaty provisions aimed at
the establishment of a collection of common central archives, archives
and public documents of every kind belonging to a State which unites
with one or more other States, and its public libraries, shall remain
its property.
2. In the event of dissolution, the central archives of the union and
its libraries shall be placed in the charge of the successor State to
which they relate most closely or apportioned between the successor
States in accordance with any other criteria of equity.
Article 23. Property situated outside
the territory of the union
1. Property situated outside the territory of the union and belonging
to the constituent States shall, unless otherwise stipulated by treaty,
become the property of the union.
2. Property of the union situated outside its territory shall, in the
event of dissolution, be apportioned equitably between the successor
States.
SECTION 4.
DISAPPEARANCE OF A STATE
THROUGH PARTITION OR ABSORPTION
Article 24. Currency and the privilege of issue
1. The privilege of issue shall belong to the successor State in the
territory absorbed or the portion of territory allocated to it in the
partition.
2. The successor State or States shall take over the assets of the
institution of issue and shall assume its liabilities in proportion to the
volume of currency in circulation or held in the territory in question.
Article 25. Public funds and Treasury
1. The successor State shall receive the public funds and the
Treasury belonging to the absorbed State in their entirety, irrespective
of where the assets in question are situated. It shall assume responsibility for the obligations relating thereto so far as the rules applying
to succession to the public debt permit.
2. In the event of partition of a State among two or more preexisting States, each of them shall succeed to a portion, which shall
be determined by treaty, of the public funds and the Treasury.
Article 26. Archives and public libraries
1. Ownership of archives and public documents of every kind, and
public libraries, belonging to the absorbed State shall be transferred
to the successor State, irrespective of where such property is situated.
2. Archives and public documents of every kind, and public libraries, belonging to the State partitioned among two or more others
shall be apportioned between the successor States with particular
regard to the link existing between such property and the territory
transferred to each State.
Article 27. Property situated outside
the absorbed or partitioned territory
1. Subject to the application of the rules relating to recognition,
ownership of all public property of the State that has disappeared
which is situated outside its territory shall devolve to the successor
State.
2. In the event of total dismemberment of a State in favour of two
or more other pre-existing States, property situated outside the State
that has disappeared shall be shared equitably among the successor
States.
12
Yearbook of the International Law Commission, 1973, vol.
SECTION 5.
SECESSION OR SEPARATION OF ONE OR MORE PARTS
OF ONE OR MORE STATES
Article 28. Currency and the privilege of issue
1. The privilege of issue shall belong to the successor State throughout the detached territory or territories.
2. Currency, gold and foreign exchange reserves, and, in general,
monetary tokens of all kinds which are proper to the detached State
shall pass to the successor State.
3. In consideration of the foregoing, the successor State shall
assume responsibility for the exchange of the former monetary
instruments, with all the legal consequences which this substitution of
currency entails.
Article 35. Case of two or more successor States
Where there are two or more successor States, the patrimonial
rights of the predecessor State in public establishments situated in the
transferred territories shall be apportioned between the successor
States in accordance with the criteria of geographical location,
origin of the property and the viability of the said establishments, and
subject, where necessary, to equalization payments and offset.
VI. PROVISIONS CONCERNING
TERRITORIAL AUTHORITIES
Article 36. Definition of territorial authorities
Version A
Article 29. Public funds and Treasury
1. Irrespective of their geographical location, public funds and
Treasury which are proper to the detached territory shall not be
affected by the change of sovereignty.
2. The State fortune—its public funds and Treasury assets—shall
be apportioned between the predecessor State and the successor State,
due regard being had to the criteria of viability of each of the States.
Article 30. Archives and public libraries
1. Archives and public documents of every kind relating directly or
belonging to a territory which has become detached in order to form a
separate State, and public libraries of that State, shall, irrespective of
where they are situated, be transferred to that State.
2. The successor State shall not refuse to hand over copies of such
items to the predecessor State or to any third State concerned, at their
request and at their expense, save where they affect the security or
sovereignty of the successor State.
For the purposes of the present articles, "territorial authority"
means any administrative division of the territory of a State.
Version B
For the purposes of the present articles, "territorial authority"
means any administrative division of the territory of a State which is
characterized by its own territory, population and administrative
authority but does not possess international legal personality.
Article 37. Public property
proper to territorial authorities
Version A
The change of sovereignty shall leave intact the ownership of the
patrimonial property, rights and interests proper to territorial authorities.
Version B
Article 31. Property situated outside
the detached territory
1. Where a State comes into being as a result of the detachment of a
part of the territory of one or more States, the ownership of public
property belonging to the said constituent territory or territories
which is situated outside their frontiers shall not be affected by such
change or changes of sovereingty.
2. Public property belonging to the predecessor State which is
situated hi a third State shall become the property of the successor
State in proportion to the contribution of the detached territory to
the creation of such property.
V. PROVISIONS RELATING
TO PUBLIC ESTABLISHMENTS
The change of sovereignty shall leave intact the ownership of the
patrimonial property, rights and interests proper to territorial authorities, which shall be incorporated, hi the same manner as the said
authorities themselves, in the juridical order of the successor State.
Article 38. Property of the State
in territorial authorities
1. The share of the predecessor State in the property, rights and
interests of a territorial authority shall be transferred ipsojure to the
successor State.
2. Where there are two or more successor States, the said share
shall be apportioned between them, with due regard to the viability of
the territorial authority, to the geographical location and origin of the
property, and subject, where necessary, to equalization payments and
offset.
Article 32. Definition of public establishments
Article 39. Divided territorial authorities
For the purposes of the present articles, "public establishments"
means those bodies or enterprises which engage hi an economic
activity or provide a public service and which are of a public or public
utility character.
Where the change of sovereignty has the effect of dividing a territorial authority into two or more parts attached to two or more
successor States, the patromonial property, rights and interests of the
territorial authority shall be apportioned equitably between the said
parts, due regard being had to the viability of the latter, to the geographical location and origin of the property, and subject, where necessary, to equalization payments and offset.
Article 33. Public establishments of the transferred territory
Public establishments which belong entirely to the transferred
territory shall not be affected by the mere fact of the change of
sovereignty.
VII.
PROPERTY OF FOUNDATIONS
Article 34. Property of the State in public establishments
Article 40. Property of foundations
The successor State shall be automatically and fully subrogated to
the patrimonial rights which the predecessor State possesses in public
establishments situated in the transferred territory.
1. So far as the public policy of the successor State permits, the
legal status of the property of religious, charitable or cultural foundations shall not be affected by the change of sovereignty.
Succession of States in respect of matters other than treaties
2. Where the predecessor State possessed a share in the patrimony
of a foundation, that share shall be transferred to the successor State;
where there are two or more successor States, it shall be apportioned
equitably between them.
Part Three
Commentaries on the preliminary provisions
on succession of States in respect of matters
other than treaties
Article 1. Scope of the present articles
The present articles apply to the effects of succession of
States in respect of matters other than treaties.
COMMENTARY
(1) This article, which corresponds to the one adopted
by the Commission in the draft on succession of States
in respect of treaties,4 makes it possible to define the
scope of the subject along the lines laid down in the first
report by the Special Rapporteur 5 and in accordance
with the instructions given to him by the Commission at
its twentieth session.6
(2) It will be remembered that the Commission, at the
Special Rapporteur's request, changed the title of his
topic, which was originally entitled "Succession of States
in respect of rights and duties resulting from sources
other than treaties".
In paragraphs 19 to 21 of his first report, the Special
Rapporteur had stated that the original title might make
the subject impracticable because the word "treaty"
was used in different ways, referring to a subject matter
of the law of succession in the topic assigned to Sir
Humphrey Waldock, and to an instrument of that law
in the topic assigned to the second Special Rapporteur.
(3) The Commission agreed to take the same approach
to both topics and consequently defined the topic assigned
to the Special Rapporteur as "Succession in respect of
matters other than treaties".
(4) This topic encompasses the succession of States in
respect of public property, public debts, legislation,
nationality, personal status, acquired rights, and so on.
These subjects will be covered by the provisions of the
present articles and future articles, based on State
practice whether expressed in treaties or not, and on
internal and international judicial practice.
The succession of States in respect of these subjects
may have been regulated by treaties concluded between
the predecessor State and the successor State, such
13
agreements being regarded here as a means or instrument
of the law of succession, although they may already have
been considered as a subject matter of the law of succession in the topic considered by the Commission on the
basis of the reports prepared by Sir Humphrey Waldock.
In other words, just as in the work relating to the latter
reports the problem of "succession to treaties by treaties"
has not been neglected, so in this report the question of
"succession by treaties to public property, public debts
and so on" will be encountered. The "devolution agreements" and any other relevant treaties regulating cases of
succession of States in respect of these subjects will
therefore be studied from the point of view of their
material content and not from the point of view of their
formal and instrumental framework.
(5) The problem of the validity of these instruments will
be studied not from the standpoint of principle (this has
already been done in the work on the law of succession of
States in respect of treaties), but from the standpoint of
its practical impact on public property, public debts and
so on.
(6) With regard to territorial regimes, dealt with in
articles 29 and 30 of the draft articles on succession of
States in respect of treaties, the Special Rapporteur noted
with interest the reaction of certain members of the Sixth
Committee at the twenty-seventh session of the General
Assembly:
Certain representatives, who supported articles 29 and 30,
doubted whether the Commission had solved the doctrinal issue
involved. Should the rules in these articles be formulated in terms
of the boundary or territorial regime resulting from the dispositive
effects of a treaty or should they relate to succession in respect of
the treaty itself ? Articles 29 and 30 would seem to have been drafted
from the standpoint that the question was not the continuance in
force of a treaty but that of the obligations and rights which devolved
upon a successor State,* but it could rightly be asked how, in legal
theory, the rights and obligations of parties emanating from a
certain treaty could be separated from the international instrument
which had created those rights and obligations.
The view was expressed that if the provisions were drafted in
terms of the "regime", more than in terms of the "treaty", it would
perhaps be more appropriate to include them in the future draft on
the part of the topic relating to succession of States in respect of
matters other than treaties.7
The Special Rapporteur will in due course take account
of these suggestions, which reinforce the view he expressed
in his first report when defining the scope of the subject
he was to study.
Article 2. Cases of succession of States
covered by the present articles
The present articles apply only to the effects of a succession of States occurring in conformity with international
law and, in particular, the principles of international law
embodied in the Charter of the United Nations.
4
For the text of the draft articles on succession of States in
respect of treaties, see Yearbook... 1972, vol. II, p. 230, document
A/8710/Rev.l, chap. II, sect. C.
6
Yearbook... 1968, vol. II, p. 94, document A/CN.4/204.
6
Ibid., pp. 216 et seq., document A/7209/Rev.l, paras. 45 et seq.
' Official Records of the General Assembly, Twenty-seventh
Session, Annexes, agenda item 85, document A/8892, paras. 106
and 107.
14
Yearbook of the International Law Commission, 1973, vol. K
COMMENTARY
(1) In his fourth report the Special Rapporteur suggested
a draft article 1, accompanied by commentaries and
worded as follows:
1. Territorial changes which occur by force or through a violation
of international law or of the Charter of the United Nations shall be
without legal effect.
2. The State which commits an act of conquest or annexation shall
not be deemed to be a successor State and, in particular, shall not
acquire possession of the property of the predecessor State.8
(2) The particularly heavy agenda at its twenty-third
session made it impossible for the Commission to study
the work of the various Special Rapporteurs, except for
that of Mr. Abdullah EI-Erian, which was accorded
priority at the request of the General Assembly. The
Special Rapporteur was, however, able to benefit at that
session by a number of suggestions made by the officers
of the Commission, to whom he is particularly grateful.
The following year, he therefore submitted in his fifth
report a reformulation of article 1, reading as follows:
The conditions for succession of States shall include respect for
general international law and the provisions of the United Nations
Charter concerning the territorial integrity of States and the right
of peoples to self-determination.9
(3) In his commentaries on this article, the Special
Rapporteur stated that irrespective of the stage at which
the Commission might wish, for reasons of convenience,
to take up in one way or another the problem dealt with
in that article, he felt that a provision of the type suggested
would inevitably have to be included, since it represented
a "problem preliminary to all or any succession".10
The subsequent work of the Commission on succession
of States in respect of treaties has confirmed the Special
Rapporteur in his opinion. Sir Humphrey Waldock put
forward at the twenty-fourth session a draft article J 1
embodying more or less the same ideas, for which two
different versions were proposed, the first being based on
article 73 of the Vienna Convention on the Law of
Treaties. 12
the principles of international law embodied in the Charter of the
United Nations.
(5) The Special Rapporteur feels it would be a pity if
the Commission were to forego adopting such an article
for the subject-matter dealt with in this report merely
because it has already been included in the draft articles
on succession in respect of treaties.
Firstly, as the Commission itself points out in its
commentary to article 6, in certain situations it is not
enough to rely on the general presumption that the
articles prepared by the Commission are to apply only to
facts occurring and situations established in conformity
with international law.
Thus, in its draft articles on the law of treaties the Commission
included, among others, specific provisions on treaties procured by
coercion and treaties which conflict with the norms of jus cogens as
well as certain reservations in regard to the specific subjects of
State responsibility, outbreak of hostilities and cases of aggression.13
(6) Secondly, contrary to the views expressed by some of
its members, the Commission wisely preferred not to
confine itself to discussing the need for such a provision
only in the case of transfers of territory occurring in
conformity with international law, considering quite
rightly that "to specify the element of conformity with
international law with reference to one category of
succession of States might give rise to misunderstandings
as to the position regarding that element in other categories of succession of States". 14 It is precisely the
concern to avoid such misunderstandings with regard to
succession in respect of matters other than treaties that
makes it necessary to reproduce that article here. It
would therefore seem particularly inappropriate to treat
each of the two sets of draft articles differently.
(7) Thirdly, it has become more essential than ever to
reproduce this article, for its provisions are not automatically applicable to succession in respect of matters
other than treaties simply because it was included in the
draft articles on succession in respect of treaties. Indeed,
precisely the contrary could be argued, i.e. that omitting
the article from one draft while including it in the other
would necessarily mean that it was inapplicable to the
(4) The Special Rapporteur, abandoning the idea of former.
submitting his own formulation, suggests that the ComFurthermore, the draft articles on succession in respect
mission should eliminate the need for further discussion
of the same problem by adopting forthwith, as a pre- of treaties, in both their form and their scope, may have
liminary provision on succession of States in respect of an autonomous legal existence and a destiny different
matters other than treaties, the same provision which it from that of the articles on succession in respect of
put into final form at its twenty-fourth session as article 6 matters other than treaties.
of the draft on succession in respect of treaties. This
Finally, even if both drafts were to serve eventually as
article reads as follows:
a basis for the conclusion of conventions on those subjects—as would be desirable (and as the Sixth Committee
The present articles apply only to the effects of a succession of
has already decided for the first set of articles according
States occurring in conformity with international law and, in particular,
to its report 15 )—it would be all the more advisable to
include
the same provision in the second report the same
8
Yearbook...l971, vol. II (Part One), p. 162, document provision as has been included in the first, and precisely
A/CN.4/247 and Add.l.
because it has been included in the first. The Commission
9
Yearbook..A972, vol. II, p. 66, document A/CN.4/259, para. 28.
Ibid., para. 25. See also paras. 26 and 27.
11
Ibid., p. 60, document A/CN.4/L.184.
12
For the text of the Convention, see Official Records of the
United Nations Conference on the Law of Treaties, Documents
of the Conference (United Nations publication, Sales No. E.70.V.5),
p. 289.
10
13
Yearbook...l972, vol. II, p. 236, document A/8710, Rev.l,
chap. II, sect. C, para. 1 of the commentary to article 6.
14
Ibid., para. 2 of the commentary.
16
Official Records of the General Assembly, Twenty-seventh
Session, Annexes, agenda item 85, document A/8892, para. 50.
Succession of States in respect of matters other than treaties
is, in any case, technically accustomed to such a practice.
Furthermore, there are many cases in which a given
provision has been reproduced word for word, when
necessary, in a number of different conventions.16
(8) It should be noted, too, that the inclusion of article 2
in the present draft is not based on theoretical considerations alone. There is a substantial corpus of relevant
practice and judicial decision, relating in particular to
succession to public property, which the Special Rapporteur mentioned in his fourth report. 17
Article 3. Use of terms
For the purposes of the present articles:
(«) "Succession of States" means the replacement of
one sovereignty by another with regard to its practical
effects on the rights and obligations of each for the territory affected by the change of sovereignty;
(b) "Predecessor State" means the State which has been
replaced by another State on the occurrence of a succession of States;
(c) "Successor State" means the State which has
replaced another State on the occurrence of a succession
of States.
15
whether this is truly succession by operation of law or merely a
voluntary arrangement of the States concerned.18
(3) The Special Rapporteur feels it would not have been
impossible to work out a single definition of succession
of States that would have been valid both for Sir
Humphrey Waldock's draft and for his own. This view
was shared by some members of the Commission.20 In
any case, the definition on which the Commission based
its articles on succession of States in respect of treaties is
inapplicable to the present draft. It is the "legal incidents" of the change of sovereignty, excluded from the
first definition, which must necessarily be taken into
consideration in the Special Rapporteur's draft.
(4) In turning from succession in respect of treaties to
succession in respect of matters other than treaties, one
passes from the fact of the simple replacement of one
State by another in the responsibility for the international
relations of a territory to the problem of the concrete
content of the rights and obligations transferred as a
result of that fact to the successor State in the various
fields relating to public property, public debts, the status
of the inhabitants and so forth. But in so doing, one must
not completely lose sight of the original fact of the
replacement of sovereignty which occasioned the transfer
or exercise of given rights and obligations. This is the
very thing which complicates the problems relating to
succession of States.
(5) It is necessary—especially when the succession of
States has not been regulated by treaty—to see what
A. Definition of succession of States
basic rules can be found to define the rights and obligations
(1) It will be recalled that the concept of "succession of of each State concerned. Consequently, succession of
States" which emerged from the work of the International States seems to be more than the replacement of one
State by another in the responsibility for the international
Law Commission reads as follows:
relations of a territory. That is why the Special Rapporteur
. . . the expression "succession of States" is used throughout the suggests tentatively that succession of States should be
articles to denote simply a change in the responsibility for the
taken to mean "the replacement of one sovereignty by
international relations of a territory, thus leaving aside from the
definition all questions of the rights and obligations as a legal incident another with regard to its practical effects on the rights
and obligations of each for the territory affected by the
of that change*.16
change of sovereignty".
(2) The Special Rapporteur is well aware that
COMMENTARY
A natural enough tendency also manifests itself both among
writers and in State practice to use the word "succession" as a
convenient term to describe any assumption by a State of rights or
obligations previously applicable with respect to territory which
has passed under its sovereignty without any nice consideration of
18
For example, the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and
Cultural Rights (General Assembly resolution 2200 (XXI) of
16 December 1966) each contain an identical provision concerning
the right of peoples to dispose of their natural resources.
17
Yearbook.,1971, vol. II (Part One), pp. 163 et seq., document
A/CN.4/247 and Add.l, commentary to article 1, especially paras. 11
(litigation between Haile Selassie and a cable and wireless company),
12 (case of the Franco-Ethiopian railway), 14 (restoration of Poland),
17 et seq. See also Yearbook...l970, vol. II, pp. 140-141, document
A/CN.4/226, paras. 30-32 of the commentary to article 8, and
passim.
18
Yearbook...l972, vol. II, p. 226, document A/8710/Rev.l,
para. 30. The Commission had previously decided not to adopt
a general definition of succession, for at that stage of its work
it considered that that seemed to be "a theoretical or academic
matter which should be avoided" being "of an abstract nature and
of doubtful utility" {Yearbook...1968, vol. II, p. 217, document
A/7209/Rev.l, para. 48).
B.
Definition of the terms "predecessor State"
and "successor State"
(6) Here the Special Rapporteur has confined himself to
reproducing the definitions adopted by the Commission
on the suggestion of Sir Humphrey Waldock. He feels
that they are acceptable in the context of his own draft
and would spare the Commission further debate on
these terms.
C.
Other terms used
(7) Clearly, the present draft article 3 is incomplete if
not embryonic and should include definitions of many
more of the terms used. For the time being, the Special
Rapporteur intends to leave this article in its present
18
Yearbook...l972, vol. II, p. 226, document A/8710/Rev.l,
para. 28, and first report by Sir Humphrey Waldock (Yearbook...
1968, vol. II, p. 91, document A/CN.4/202, para. 3 of the
commentary to article 1).
20
See, for example, the statement by Mr. Ushakov (.Yearbook...
1972, vol. I, p. 33, 1156th meeting, para. 14.
16
Yearbook of the International Law Commission, 1973, vol. II
form and to complete it as the Commission proceeds
with its work.
It will probably become necessary to regroup in
article 3 the definitions of public establishments (at present
the subject of article 32), territorial authorities (the subject
of article 36) and perhaps public property itself (article 5),
as well as the concept of concession (article 10, paragraph 1). In the interest of clarity, the Special Rapporteur
will retain this somewhat fragmented approach, and will
make the necessary rearrangements at a later stage of
the Commission's work.
Part Four
Draft articles on succession
to public property, with commentaries
INTRODUCTION
5. In taking up the topic of succession of States to
public property in his third and fourth reports, the Special
Rapporteur did not base his approach on theory, but
simply tried to state some pragmatic rules drawn from
the practice of States. He therefore deliberately refrained
from going into the preliminary question whether the
transfer of public property is in fact part of the international law of State succession.
6. It might well be argued that since State succession
consists of the replacement of one sovereignty over a
territory by another, this means that the previous sovereignty automatically loses its material support and that
the rights of the predecessor State to public property
therefore pass ipso jure to the successor State. The right
to public property would thus be seen as an effect of the
coming into existence, or of the existence, of a new
subject of international law in the territory concerned,
and not as a consequence of State succession per se.
7. Viewed in this light, the theory of State succession
would not apply to the right and obligations of the
State in relation to public property. Once international
law recognizes the validity of the juridical order, this
would entail for the successor State a right to all Stateowned public property. More precisely, international
law would simply recognize the validity of the new juridical
order of the State expressed by and through the municipal
legislation under which the automatic transfer of the
right to public property takes place.
8. This approach reduces sovereignty to something that
would be inconceivable without a set of operational
and material attributes such as, for example, the public
property which the States uses to meet certain essential
needs of the inhabitants of its territory. However, this
approach is open to one rather serious objection. If the
successor State automatically acquires public property
by the mere fact of its own sovereignty and its own power,
how does it come about that property situated outside
the territory affected by the change, i.e., outside the
successor State's sphere of territorial jurisdiction, may
fall within its patrimony ?
9. The Special Rapporteur has accordingly abstained
from any purely theoretical study of this problem and
of other problems which may arise from State succession
to public property, and has confined himself to preparing
draft articles in terms as specific as possible. Throughout
his work he has tried to keep in mind a concern which
may be expressed in the form of three questions: (1) What
is public property'! (Problems of defining and determining
such property); (2) What is transferable public property?
(Is it all public property, or property of public authorities,
or State property alone ? Is it all State property or only
the property appertaining to sovereignty?); (3) Is the
ownership of the property transferred (this is a question
of succession to property stricto sensu) or is the property
merely placed under the control of the new juridical
order (this brings in succession to legislation a well) ?
10. The draft articles proposed by the Special Rapporteur
in his earlier work to cover succession to public property
were based on a uniform approach. They were therefore
designed to be applied indiscriminately to all types of
State succession.
11. In the present study the Special Rapporteur feels
obliged to take into account the new element introduced
by the adoption in first reading by the International
Law Commission of the draft articles on succession of
States in respect of treaties, based on the reports of Sir
Humphrey Waldock, and the consideration of that draft
by the Sixth Committee of the United Nations General
Assembly.
12. In order to make the work of the International
Law Commission easier, the Special Rapporteur therefore
plans to follow the method and approach used in preparing
the rules concerning succession in respect of treaties,
so far as that is compatible with the special features of
his subject-matter. This approach clearly has advantages,
for it will save the Commission time and make it possible
to standardize the matter examined, through a more or
less parallel approach. Thus, for example, some articles,
which have already been adopted by the Commission
and approved by the Sixth Committee, could, as appropriate, be included in the present draft. Similarly, despite
its inadequacies, the classification of types of succession
on which the Commission based its work could be used
in this draft, since the Special Rapporteur is prepared
to cast his articles in the mould with which the International Law Commission and the Sixth Committee are
already familiar. He therefore intends to review his
draft, taking an analytical approach.
13. However, this method clearly has its limits. First,
the very concept of "succession" must be re-evaluated
in the light of the meaning it must have in the area of
research assigned to the Special Rapporteur. Moreover,
although the close relationship established between
treaty law and the law of State succession in respect
of treaties proved to be very fruitful, this approach is
naturally inapplicable in the case of the law of succession
of States in respect of matters other than treaties.
14. On the other hand, as already indicated in all his
previous reports, the Special Rapporteur feels that the
principles of the Charter of the United Nations (and
Succession of States in respect of matters other than treaties
in particular those relating to the right of peoples to
self-determination and the right of peoples to dispose
freely of their natural resources) must be fully expressed
in the present draft, in the same way that those principles—or at least the principle of self-determination—were felicitously embodied in the articles on State
succession in respect of treaties. In the case of succession
to public property in particular, the right to self-determination (which in that case takes the form of the elementary
principle of the viability of a new State), prompts the
formulation of rules calling for the automatic transfer
to the successor State of the property necessary for the
exercise of sovereignty over the territory concerned.
15. The Special Rapporteur proposes the following
provisional work plan:
Parti:
Part II:
Part III:
Part IV:
Part V:
Part VI:
Part VII:
Part VIII:
Preliminary provisions
General provisions
Provisions common to all types of succession of States
Provisions relating to each type of succession of States
(1) Partial transfer of territory
(2) Newly independent States
(3) Uniting of States and dissolution of
unions
(4) Disappearance of a State through
partition or absorption
(5) Secession or separation of one or more
parts of one or more States
Provisions relating to public establishments
Provisions concerning territorial authorities
Property of foundations
Miscellaneous provisions
I. PRELIMINARY PROVISIONS
Article 4. Sphere of application of the present articles
The present articles relate to the effects of succession of
States in respect of public property.
COMMENTARY
(1) There is little to be said about this draft article.
It is not only useful, but so simple that comments are
virtually unnecessary. The basic purpose of the article
is to define the scope of the present articles: first, they
deal with succession of States and not with succession
of Governments or succession in international organizations, and second, they deal with public property and not
other "subject-matters of the law of succession", such
as public debts, legislation, the status of the inhabitants,
acquired rights and so on, or with treaties, which have
already been studied in another draft.
(2) This public property is not defined in the present
article. It will be defined in the following article. However,
17
the Special Rapporteur has not specified in the present
article to which authority, State, territorial authority
or public establishment this public property must belong.
Consequently, the article does not refer only to public
property belonging to the State but to all public property.
The justification for this position taken by the Special
Rapporteur will be found in article 5.
Article 5. Definition and determination
of public property
For the purposes of the present articles, "public
property" means all property, rights and interests which,
on the date of the change of sovereignty and in accordance
with the law of the predecessor State, were not under private
ownership in the territory affected by the change of sovereignty, or which are necessary for the exercise of sovereignty by the successor State in the said territory.
COMMENTARY
A. Public property
(1) In this third report, the Special Rapporteur proposed
a draft article 1 in two versions, providing both a definition
and methods for determining public property. Such
property was referred to as being property which is of
a "public" character because it belongs to the State, a
territorial authority or a public establishment or Corporation. The long commentary by the Special Rapporteur 21
stressed the fact: (a) that a purely internationalist approach to the notion of public property is impracticable
since there is in international law no autonomous criterion
for determining what constitutes public property; (b) that
the determination of what constitutes public property
by treaty or by international judicial decisions has its
limits and does not resolve all problems; and (c) that
whatever the circumstances, recourse to municipal
law seems inevitable for such determination, the essential
question being which legislation—that of the predecessor
State, that of the successor State or that of the territory
affected by the change of sovereignty—should be applied
for that purpose.
(2) Since the Special Rapporteur found practice and
judicial decisions somewhat contradictory,22 he proposed
that the determination of what constitutes public property
should be made by reference to the municipal law which
governed the territory concerned "save in the event of
serious conflict with the public policy of the successor
State". He gave the reasons for this in paragraphs
9-13 of the commentary on article 1 (third report).
However, as soon as the municipal law of the predecessor
21
Yearbook...1970, vol. II, pp. 134-143, document A/CN.4/226,
part two.
32
Cf. particularly the case of the British Protestant mission
hospitals in Madagascar (ibid., p. 137, para. 18), the case of
"habons" or "waqf" property in Algeria (ibid., p. 138, paia. 19),
the case of the Central Rhodope forests (ibid., p. 139, paras. 21-23),
the case of the Italian enti pubblici in Libya (ibid., paras. 24-25),
the case of the property of the Order of Saint Maurice and St Lazarus
on the Little Saint Bernard Pass (ibid., para. 26), the Peter Pazmany
University case (ibid., p. 140, paras. 27-30), the Chorz6w factory
case (ibid., pp. 141-142, paras. 31-35 and 36-42), the case of German
settlers in Upper Silesia (ibid. pp. 142-143, paras. 43-45) and so on
18
Yearbook of the International Law Commission, 1973, vol. II
State or of the territory affected by the change of sovereignty has performed its function of determining what
constitutes public property, it of course gives way to the
juridical order of the successor State. Once the property
has been characterized for the purposes of transfer, the
latter State reassumes its sovereign power to change the
legal status of the property devolving to it, if it so desires.
By wording the draft article in this way, the Special
Rapporteur left the question open for discussion by
suggesting tentatively a solution that would make it
possible to apply the legislation of the successor State
rather than that of the predecessor State if the contrary
course entailed a risk of serious conflict with public
policy.
(3) Consequently, the Special Rapporteur proposed the
two following alternative formulations:
Version A
For the purposes of these articles, "public property" means all
property, whether tangible or intangible, and rights and interests
therein, belonging to the State, a territorial authority thereof or a
public body.
Save in the event of serious conflict with the public policy of the
successor State, the determination of what constitutes public property
shall be made by reference to the municipal law which governed
the territory affected by the change of sovereignty.
Version B
For the purposes of these articles, "public property" means all
property, rights and interests which, on the date of the change of
sovereignty and in accordance with the law of the predecessor
State, were not under private ownership in the territory ceded by
that State.
(4) Pursuing his examination of this definition in his
fourth report, in connexion with articles 5 and 5 bis,
the Special Rapporteur explained that the suggested
formulation was intended solely to define "public property", whether it belonged to the State, a territorial
authority or a public enterprise. Another problem was
to determine whether all the public property covered
by the definition was transferable to the successor State.
Indeed, that was precisely the problem to be settled in
the draft articles which followed. Thus the definition
and determination of public property was to open the
way to drawing a distinction between the effective transfer
of State property and merely placing public property
under the sway of the juridical order of the successor
State. 23
(5) In his fifth report, 24 the Special Rapporteur suggested that the Commission should retain only the variant
5 bis, since despite the wide sphere of application of
article 5, the proposed definition did not cover all forms
of public property. The Special Rapporteur feared that
article 5 did not cover certain categories of property
which were indisputably public, such as those connected
23
See the commentaries and the examples cited in the fourth
report (Yearbook...l971,
vol. II (Part One), pp. 174-175, document
A/CN.4/247 and Add.l, paras. 1-5 of the commentary to article 5).
24
Yearbook...l972,
vol. II, p. 66, document A/CN.4/259,
para. 30.
with the concept of "socialist property". Thus, for
example, property of a worker-managed enterprise could
not be covered by the proposed article 5 because it
inherently belonged neither to the State, nor to a "territorial authority" or "public body" thereof.
(6) As recalled above, 85 the problem of the law to be
used as point of reference for the purpose of determining
what constitutes public property had been the subject
of lengthy commentaries, which indicated that examination of the many precedents showed clearly that the law
of the predecessor State is not always taken into consideration. The successor State itself has often defined, in
exercise of its sovereign powers, the public property
which it considers should be included in its patrimony.
Accordingly, the reference to the law of the predecessor
State proposed in the fourth report (article 5 bis), which
is not consistent in every respect with the very diversified
practice in this sphere, needed to be modified in order
to conform more closely to reality.
(7) The Special Rapporteur therefore proposed a new
formulation, which has been reproduced at the beginning
of the present commentary, article 5 bis having become
article 5 in the present numbering. This text, while
allowing some scope for the application of the municipal
law of the successor State in the determination of public
property, omits the inherently ambiguous and dangerous
reference to the "public policy" of the successor State,
contained in paragraph 2 of the first version of draft
article 5 (fourth report).
(8) As the Special Rapporteur noted in his fourth
report, 26 international lawyers have rarely concerned
themselves with the definition of public property. They
had occasion to do so when an attempt was made in
article 56 of the Regulations annexed to the Hague
Convention of 18 December 1907 respecting the Laws
and Customs of War on Land to provide for a system
of protection of "The property of municipalities, that
of institutions dedicated to religion, charity and education,
the arts and sciences, even when State property". 27 - 28
Similarly, the Special Rapporteur noted the existence
of an internationalist approach to the definition and
determination of public property within the Reparation
Commission established by the peace treaties of 1919.29
25
See paras. 1 and 2 above.
Yearbook...l971,
vol. II, (Part One), p. 175, document
A/CN.4/247 and Add.l, Part Two, para. 6 of the commentary
to article 5.
27
J. B. Scott, The Hague Conventions and Declarations of 1899
and 1907 (New York, Oxford University Press, 1915), p p . 125-126.
28
Max Huber (" La propri&e publique en cas de guerre sur
terre " ) , Revue generate de droit international public (Paris), vol. X X
(1913), p. 680), sought to determine the legal status of the property
" of local administrative organs occupying an intermediate place
between municipalities and the central State administration ",
of "State establishments and foundations", and of "separate
patrimonies, distinct from the general patrimony of the State",
but the criteria he defined are not rigorous, and neither are the
categories set out above.
29
Yearbook...l971, vol. II (Part One), pp. 175-176, document
A/CN.4/247 and Add.l, Part Two, paras. 8-12 of the commentary
to article 5.
26
Succession of States in respect of matters other than treaties
B.
Rights and interests
(9) The proposed definition of public property refers
to rights and interests. Although the notion of rights
—real, patrimonial, pecuniary—is well known to the
law, that of interests is more intangible. So far as the
Special Rapporteur is aware, there is no definition of
"interests" as precise as that which could be given
of "rights", the former term probably having a political
rather than a legal connotation.
The Dictionnaire de la terminologie du droit international
defines "interest" as a term denoting that which materially
or morally concerns a natural or juridical person, the
material or moral advantage presented for such person
by an act or an abstention from an act, by the maintenance
of or alteration in a situation. 30
(10) The Special Rapporteur has nevertheless used this
term, despite its imprecision, in the definition he has
proposed for public property. His sole reason, which
he recognizes as insufficient, is that the term is used in
a very large number of diplomatic agreements and texts.
To take only one example, the Treaty of Versailles of
28 June 1919 includes a special section (part X, section IV)
entitled "Property, rights and interests *" 31
C.
Unliqiddated claims and rights
(11) A special aspect of the problem of determining
what constitutes transferable public property is presented
by the question of unliquidated claims and rights.
Some theorists take the view that such claims can hardly
be considered as "public property" capable of transfer
to the successor State. 32 Their argument is that such
claims are vested in the predecessor State, for whose
benefit they were established, and that, in the absence of
a continuing legal relationship between the author of
the damage suffered and the predecessor State—a
relationship that would not survive the change of sovereignty—the successor State cannot become creditor.
There is admittedly no legal link between the predecessor State and its successor, nor any direct link
between the new sovereign and the third party responsible
for the damage. But in this matter, which properly
belongs to the sphere of international responsibility
rather than to that of State succession, there is a substitution of relationships. The damage suffered, if real, is not
indeterminate; it has left some trace, or at least, if it
is considered fair that there should be compensation,
it has affected the exercise of sovereignty in one way
or another or resulted in a more or less serious disturbance
of some juridical, economic or social order attached
to the territory transferred. Furthermore, the recognition
30
Dictionnaire
de la terminologie
du droit international,
ed.
19
or non-recognition of a right, which has been legally
established but not yet liquidated, should not depend
on the moment or period at which it is claimed. If the
claim had been settled before the change of sovereignty,
its products, either in its original form or re-used, would
have in some way enriched the territory. This problem
is of some practical importance, since it also affects
outstanding debt-claims, particularly in respect of taxes. 33
II.
GENERAL PROVISIONS
Article 6. Transfer of public property as it exists
1. The predecessor State may transfer a territory only
on the conditions upon which that State itself possesses it.
2. In accordance with the provisions of the present
articles, public property shall be transferred to the successor State as it exists and with its legal status.
COMMENTARY
(1) The Special Rapporteur merely draws attention to
commentary to article 2 in his fourth report. In the first
version of article 2, in the fourth report, the two paragraphs
proposed for article 6 above were separated by another
paragraph which has been deleted—not without hesitation—from the present version.
(2) Furthermore, paragraph 2 of article 6 as proposed
above has been modified slightly as compared with the
first version given in the former article 2. The transferability of property as it exists and with its legal status
is no longer accompanied by the restriction that that
transfer must be compatible with the municipal law
of the successor State.
Article 7. Date of transfer of public property
Save where sovereignty has been restored and is deemed
to be retroactive to the date of its termination or where the
date of transfer is, by treaty or otherwise, made dependent
upon the fulfilment of a suspensive condition or simply
upon the lapse of a flxed period of time, the date of transfer
of public property shall be the date on which the change of
sovereignty
(a) Occurs dejure through the ratification of devolution
agreements, or
(b) Effectively carried out in cases where no agreement
exists or reference is made in an agreement to the
said effective date.
COMMENTARY
(1) With the exception of a few negligible drafting
changes, the wording of article 7 above is the same as
that of article 3 in the fourth report, and the Special
Rapporteur therefore draws attention to his commentary
on that article.
Jules Basdevant (Paris, Sirey, 1960), p. 342.
31
G. F. de Martens, ed. Nouveau Recueil general de traites
(Leipzig, Weicher, 1923), 3rd series, t. XI, p. 323. For English text,
see British and Foreign State Papers, 1919, vol. 112 (London, (2) It will be recalled that in the draft articles on succession
H. M. Stationery Office, 1922), p. 146.
of States in respect of treaties the Commission defined
33
Ch. Rousseau, Cours de droit international public — Les
transformations territoriales des Etats et leurs consequences juridiques
33
(Paris, Les cours de droit, 1964-1965), pp. 142-143.
See below paras. 6 and 7 of the commentary to article 11.
20
Yearbook of the International Law Commission, 1973, vol. II
the term "date of the succession of States" 34 in the following way:
Article 8. General treatment of public property
according to ownership
"date of the succession of States" means the date upon which the
successor State replaced the predecessor State in the responsibility
for the international relations of the territory to which the succession of States relates. 36
All other conditions established by the present article
being fulfilled,
This definition itself is influenced by the definition of
succession of States, which is considered to be the replacement of one State by another in the responsibility for
the international relations of a territory.
(a) Public or private property of the predecessor State
shall pass within the patrimony of the successor State;
(b) Public property of authorities or bodies other than
States shall pass within the juridical order of the successor
State;
(c) Property of the territory affected by the change of
sovereignty shall pass within the juridical order of the
16. At this point a provision could be inserted dealing
with limitations imposed by treaty on the principle of
the general and gratuitous transfer of public property.
In his fourth report, the Special Rapporteur included
a draft article 4 worded as follows:
Subject to the application of general international law and of the
law of treaties for the purposes of the interpretation or even the
invalidation of an agreement regulating a case of State succession,
any limitation imposed by treaty on the principle, hereinafter
enunciated, of the general and gratuitous transfer of public property
shall be interpreted strictly.35
17. The Special Rapporteur feels he must refrain, for
the time being, from submitting a special provision of
this type.
18. Similarly, he still hesitates to submit to the
Commission an article concerning the fate of public
property in cases where on the one hand a former treaty,
containing all or part of the provisions relating to
public property, was considered not binding on the
successor State by the application of the articles on
the succession of States in respect of treaties and on
the other, where a devolution agreement concerning
public property was considered invalid by application
of the general rules of the law of treaties.
successor State.
COMMENTARY
(1) The Special Rapporteur feels that the questions
that may arise in connexion with article 8, which are
situated at the confluence of the law relating to succession
to public property, the law relating to succession to
legislation and the municipal law of the successor State,
are of fundamental importance. He has therefore submitted article 8 in an attempt to shed some light on
these complicated questions, which are raised by the
succession of States and can be noted in connexion
with each rule. This article does not represent in itself
a basic rule, which could be said to be directly applicable.
It is not designed to indicate specifically which public
property should be transferred to the successor State,
for to that end, as indicated in the preamble to the article,
"all other conditions established by the present articles
[must be] fulfilled".
(2) Of course, not all the public and private property
of the predecessor State passes within the patrimony
of the successor State. Other conditions, set out throughout the present draft, must be fulfilled. The Special
Rapporteur's aim in article 8 is simply to draw a clear
distinction of principle between the problem of the
tramferability of public property in full ownership to the
successor State, and that of the patrimonial status quo
19. The Special Rapporteur considers it quite obvious when the change of sovereignty does not affect the
that the obligations imposed on the predecessor State ownership of public property but alters its "legal status".
by international law and codified in the present articles Even so, the latter term is not appropriate if it seems
are independent of the existence or validity of treaties. to allude to the successor State's power—which is not
This is not to say that the States concerned cannot regulate at issue here—to maintain or modify, like any other
the problem of the transfer of public property by treaty. State, the legislation applicable to the property whose
But if the treaties or devolution agreements concerning ownership has not been affected by the change of
that subject were considered inapplicable or invalid, sovereignty. What is at issue here is the fact that without
it would be the "general law" of succession of States any change in ownership or even any amendment to the
in matters other than treaties, as codified in the present law, the public property concerned passes within the
articles, which would be applied. If, for example, the sphere of competence of another sovereign on the
predecessor State had previously concluded a treaty occasion of the succession of States. This is what the
which had the effect of increasing its patrimony in the Special Rapporteur wished to make clear by referring
territory subsequently affected by the succession of to another internal order, the juridical order of the
States, it cannot invoke the possible non-applicability successor State.
of that treaty to the successor State to evade the obligation
to transfer that property. Treaty law which is invalid (3) Basically, there are only three categories of property,
or null and void must clearly give way to the "general namely, those referred to in the three paragraphs of
law" of mandatory and gratuitous transfer.
article 8, i.e. the public or private property of the State,
the property belonging to territorial authorities or bodies
34
Used in draft articles 7 a n d 8, 10-15, 18 a n d 19, 21-23 a n d 25. other than States and lastly property belonging to the
35
territory affected by the change of sovereignty itself.
Article 2, paragraph 1 (e).
Succession of States in respect of matters other than treaties
Property in the first category must change owner and
pass within the patrimony of the successor State,
provided all other necessary conditions are fulfilled.
This is not the case for the two other categories of property, which continue to belong to the territorial authority,
the public body or the transferred territory. However,
that property falls within the legal jurisdiction of the
successor State, or in other words, is governed henceforth
by a new juridical order. Draft article 8 is designed
solely to make that point clear.
(4) In his fifth report,36 the Special Rapporteur reverted
to the problem of the transferability of public property
belonging to the State, excluding other categories of
public property. The latter property might seem to
have nothing to do with the succession of States stricto
sensu, but it cannot be left out completely, firstly because
the property which does not pass within the patrimony
of the successor State does at least pass within its sphere
of competence, and secondly because the transfer does
not always occur between public bodies and their counterparts, but brings into play treaty or other procedures
and rules which usually involve the predecessor State
and the successor State.
(5) Writers rarely give any attention to property proper
to the territory affected by the change of sovereignty.
The amount of such property is, however, considerable.
There is no territory which does not possess property
of its own.
In the colonies, the situation was not always clear
and this property was often governed by a host of parallel
or overlapping legal regimes.
In legal systems which recognize the concept of the
public and private domain of the State, the situation
is not always simple. In former French Indo-China,
for example, there were no less than eight different
kinds of domain: (a) and (b) a "colonial" domain composed
of the two domains, public and private, of the French
State in Indo-China; (c) and (d) a "general" domain
comprising the two domains, public and private, of the
former Federation of the States of Indo-China; (e) and
(/) "local domains" belonging to each protectorate or
colony in the Federation (Tonkin, Annam, Cochin China,
Cambodia, Laos) with distinctions between the public
and private domain; (g) and (/J) public and private domains belonging to the provincial, local and municipal authorities of each protectorate or colony in the Federation.37
36
Yearbook...l972,
vol. I I , p . 66, document A/CN.4/259,
paras. 34 a n d 35.
37
T h e situation was (and probably still is) quite complicated
in the former Belgian Congo. F o r example, the precise legal
characterization of the property of the Special Committee for
Katanga raised very difficult problems (see J.-P. Paulus, Droit
public du Congo beige (Universite libre de Bruxelles, Institut de
Sociologie Solvay, Etudes coloniales, N o . 6, 1959, p p . 120 et seq.).
T h e Treaty of 9 January 1895 between the "Independent State of
the C o n g o " a n d the Belgian State h a d ceded to Belgium, under
the terms of article 2,
"all the immovable and movable assets of the Independent
State, a n d in particular (1) the ownership of all lands belonging
to its public or private domain... (2) shares and founder's shares...
(3) all buildings, constructions, installations, plantations and
properties whatsoever established or acquired by the Government..., movable property of every kind a n d livestock..., its
21
(6) The reason why writers have neglected this problem
of property proper to the territory is, perhaps, that
they did not believe such property should be affected
by the change of sovereignty.
However, while it seems obvious that this property
should not devolve to the successor State38 and that
it remains the property of the territory ceded, it is equally
clear that this does not amount to maintenance of the
status quo ante. The property does not continue to be
governed by the former law or to be subject to the
former sovereignty. This, of course, is part of the broader
problem of succession of States in respect of legislation.
However, the point must be made here that public
property owned by the ceded territory in its own rights
continues to belong to it but follows the political and
judicial destiny of the territory, which passes under
another sovereignty. Such property will continue to be
owned by the territory but will be governed by the
legislation of the successor State. In other words, the
public property belonging to the territory is not affected
by the change of sovereignty so far as ownership is
concerned, but it passes within the juridical order of
the successor State.
(7) A resolution of the Institute of International Law
laid down the same principle, stating that local corporate
bodies retained the right of ownership over their property
after territorial changes: "The territorial changes leave
intact those patrimonial rights which were duly acquired
before the change took place." The resolution stated
"These rules also apply to the patrimonial rights of municipalities or other corporate bodies belonging to the State
which is affected by the territorial change*" 39
(8) This plain fact is worth recalling and recording in a
rule of the kind suggested by the Special Rapporteur.
Although it is so obvious as to be unremarkable in the
case of property situated in the territory itself, it becomes
most important when a decision has to be taken on the
fate of property proper to the territory which is situated
outside its geographical boundaries. That specific problem will be dealt with in some of the articles suggested
below, in the context of the clear rule expressed here.
ships and boats together with their equipment and its military
arms equipment, (4) the ivory, rubber and other African products
which arc at present the property of the Independent State and
the stores and other merchandise belonging to it".
G. F . de Martens, ed. Nouveau Recueil general de traites
(Gottingen, Librairie Dieterich, 1896), 2nd series, t. XXI, p. 693).
Public property was later divided into categories. Land, for example,
formed one category—"State lands", which were in turn divided
into land in the public domain, land in the private domain, land
for which concessions had been granted and vacant land (Paulus,
op. cit., pp. 15 et seq.). However, there was never any generally
accepted demarcation between the patrimony of the colony and
that of the metropolitan country (ibid., pp. 26 et seq.).
38
Except in the case of the total disapearance of the predecessor
State—in other words, when there is, ex hypothesi, no property
of the territory itself distinct from the property of the State which
has disappeared. The ceded territory is coextensive with the former
territory.
39
Paragraphs 3 and 4 of resolution II of the Institute of International Law adopted at its forty-fifth sessipn, held at Sienna
from 17 to 26 April 1952 (Annuaire de I'Institut de droit international,
1952, II (Basel), pp. 475-476).
22
Yearbook of the International Law Commission, 1973, vol. II
(9) This problem often arises, either because the territory
possesses property of its own which may normally be
situated outside its geographical boundaries or because
such property comes to be situated outside its new
boundaries as a result of partition of the territory, cession
of part of the territory, frontier adjustments, and so forth.
The Franco-Italian Conciliation Commission established under the Treaty of Peace with Italy of 10 February
1947 had to deal with a problem of this kind.40 In this
case the Commission, bound by the very clear wording
of paragraph 1 of annex XIV to the Treaty,41 which it
had to interpret, went further than is suggested here and
recognized the devolution to the successor State, in full
ownership, of the property proper to the ceded territory.
This property does not merely come within the juridical
order of the successor State.
(10) The agent of the Italian Government had argued
that:
When paragraph 1 states that the successor State shall receive,
without payment, State and para-statal property (including the
property of local agencies) within territory ceded, it is not—at least
in the case of the property of local agencies—referring to succession
of the State to the ownership of such property but to the property's
incorporation into the juridical order of the successor State.42
(11) The Commission rejected that viewpoint, since
the main argument of the Italian Government conflicts with the
very clear wording of paragraph 1: it is the successor State that shall
receive, without payment, not only the State property but also the
para-statal property, including biens communaux, within the territories ceded. It is the municipal legislation of the successor State
that must determine the fate (final destination and juridical regime)
of the property thus transferred, in the new State context into which
the property has passed following the cession of the territory.43- **
III.
PROVISIONS COMMON TO ALL TYPES
OF SUCCESSION OF STATES
Article 9. General principle
of the transfer of all State property
Property necessary for the exercise of sovereignty over
the territory affected by the succession of States shall
devolve, automatically and without compensation, to the
successor State.
10
Franco-Italian Conciliation Commission, "Dispute concerning
the apportionment of the property of local authorities whose
territory was divided by the frontier established under article 2
of the Treaty of Peace: decisions N o s . 145 and 163, rendered
on 20 January and 9 October 1953 respectively", (United Nations,
Reports of International Arbitral Awards, vol. XIII (United Nations
publication, Sales N o . 64.V.3), p p . 501-549.
41
United Nations, Treaty Series, vol. 49, p . 225.
42
United Nations, Reports of International Arbitral
Awards,
vol. XIII, (op. cit.), p p . 512-513. Annex XIV, paragraph 1, stated
that " T h e Successor State shall receive, without payment, Italian
State a n d para-statal property within territory ceded...", (ibid.,
p. 503).
43
Ibid., p p . 514-515.
44
With regard to "property proper" to the territory, see also
fifth report (Yearbook... 1972), vol. II, p. 67, document A/CN.4/259,
paras. 42-45.
COMMENTARY
(1) The Special Rapporteur embodied the general
principle of the transfer of all State property in an article
entitled "Property appertaining to sovereignty", which
was worded as follows in the third and fourth reports:
1. Property appertaining to sovereignty over the territory shall
devolve, automatically and without compensation, to the successor
State.45
(2) The Special Rapporteur noted in his third report 46
that it was difficult to find a satisfactory expression to
describe property of a public character, which, being
linked to the imperium of the predecessor State over the
territory, can obviously not remain the property of that
State after the change of sovereignty, or, in other words,'
after the termination of that imperium. Much, if not all,
of this property is referred to in some bodies of legislation
as property in the "public domain". This expression is
unknown in many legal systems, however, and its lack
of universality makes it unsuitable for use in the draft
article.
(3) The distinction between public domain and private
domain is unsatisfactory, not only because it does not
exist in all legal systems, but also because it does not
cover public property in a uniform and identical manner
from country to country. Consequently, the mind may
well balk at deciding, for instance, that all property in
the public domain devolves automatically and without
compensation to the successor, even though the kind of
property included in that domain and what constitutes it
can vary to a very great degree. Even more disconcerting
would be an approach whereby the predecessor State,
in the view of some writers, would retain its private
domain and, in the view of others, would cede it to its
successor only against compensation. There does not
exist a uniform criterion for dividing property into public
domain and private domain. This would mean setting up
rules which would not be identically applied in practice
and whose scope would vary from country to country.
(4) The Special Rapporteur's suggestion that the notion
of public domain and private domain should be replaced
by the notion of "property appertaining to sovereignty"
was not, perhaps, much of an improvement and might
be open to the same criticisms. This suggestion did not
spare us the still difficult task of seeking a definition of
such property. Yet, however difficult such a definition
may be, it was nevertheless easier to express internationally
than a definition which would try to encompass notions
that vary and are not accepted by everyone, such as
public domain and private domain.
It may be said that property appertaining to sovereignty over the territory represents the patrimonial
aspect of the expression of the domestic sovereignty of the
State. It is true that this expression may differ from one
political system to another, but it has the characteristic
of covering everything that the State, in accordance
45
Yearbook...l970, vol. II, p. 143, document
part two, article 2; and Yearbook...l971, vol. II (Part
document A/CN.4/247 and Add.l, Part Two, article
4S
Yearbook...l970, vol. II, pp. 143-114, document
paras. 2-6 of the commentary to article 2.
A/CN.4/226,
One), p. 177,
6.
A/CN.4/226,
Succession of States in respect of matters other than treaties
23
with its own guiding philosophy, regards as a "strategic"
activity which cannot be entrusted to a private person.
sought to avoid this distinction, which is, indeed, unknown to some national systems of law.48
In order to carry on this activity, the State becomes
owner of movable and immovable property. It is this
property, which the State uses to manifest and exercise
its sovereignty or to perform the general obligations
involved in the exercise of its sovereignty (e.g., national
defence, security, the promotion of public health and
education, and national development), that may be regarded as property appertaining to sovereignty over the
territory.
(7) In his third report, the Special Rapporteur dealt
at length with international practice relating to the
devolution of public property appertaining to sovereignty over the territory.49 This practice sanctions the
principle that territory shall devolve automatically and
without compensation, whatever the type of succession.
The writers unanimously consider that the principle of
the transfer of such property is mandatory, even if some
of them, basing their views on the distinction between
the "public domain" and the "private domain" of the
State, make the transfer of property in the second category dependent on the payment of an indemnity to the
predecessor State. The rule of general devolution goes
back to the period when the patrimonial conception of
the State prevailed in juridical systems where the patrimonial rights of the State were regarded as appurtenances
of the territory.
(5) How is one to determine more precisely what constitutes this property?
It will include first, of all "public" property—in other
words, property which is denned according to three
criteria: the public character which it possesses by reason
of its being governed by public law; the fact that it is
not owned by a private person and therefore belongs to
the State, and the fact that it is for the use, or at the
service, of all the population.
In addition, however, it includes property which, in
accordance with the legislation of the predecessor State,
helps to fulfil the general interest and through which the
public power expresses its sovereignty over the territory.
It can, and assuredly will, happen that what constitutes
such property varies from State to State and from one
political system to another. That is inevitable. One
State may feel that it is not expressing its sovereignty
and is not fully possessed of all its attributes of public
power unless it manages directly and exclusively a given
sector of activity, or even all sector of activity. Another
State, by contrast, confines its activity to very limited
sectors. It may regard certain roads, certain airfields,
even some arms factories, as being capable of private
ownership. It is the very limited range of property to
which it confines its activities that will have to be regarded
as property appertaining to its sovereignty. It is, in short,
all the property which follows the juridical destiny of the
territory and which accordingly is transferable along
with it, unlike property that is not closely linked to the
territory in question.
The French Minister for war wrote in 1876; *'
. . . the right and duty to ensure the functioning of public services,
to order, for example, major roadworks, waterworks or fortifications, and ownership of or eminent domain over such works
which are an appurtenance of the public domain—this entire
aggregate of duties and rights is, in the final analysis, an attribute
of sovereignty. This inseparable attribute of sovereignty
with the sovereignty itself* . . .
moves
(6) It was in order to take account of the fact that neither
the writers nor judicial decisions have exhausted discussion
on the question whether property in the private domain
of the State is transferable ipso jure on the same grounds
as property in its public domain that the Special Rapporteur
47
In a memorial in support of an appeal to the Conseil d'Etat
(France, Conseil d'Etat, 28 April 1876, Ministre de la guerre
v. Hallet et Cie., Recueil des arrets du Conseil d'Etat (Paris, Marchal,
Billard, 1876), 2nd series, vol. 46, p. 398, foot-note).
(8) In his fourth report, the Special Rapporteur added
some further commentaries on this principle of the
transfer of property appertaining to sovereignty, that
is, property allocated by the State to a public service
or public utility, these two terms being interpreted in a
broad sense.50
There may perhaps be other property which, although
not appertaining to sovereignty, belongs to the public
domain and as such should also normally be transferred
without compensation. If that proves to be the case, the
matter could be dealt with in the context of other draft
articles.
(9) Reverting to the question in his fifth report, S1 the
Special Rapporteur expressed concern lest in its present
form the draft article under condideration might pose
a problem because of the ambiguity of the term "property appertaining to sovereignty". Contrary to the
intention of the Special Rapporteur, that formulation
might give the impression that the sovereignty of the
successor State would in some way be a continuation
of that of the predecessor State, an interpretation which
would have very important consequences for public debts
and liabilities in general, for the validity of treaties,
acquired rights and so forth. The Special Rapporteur
has expressed his views on these matters elsewhere.52 To
48
The report of the Sixth Committee to the twenty-sixth session
of the General Assembly {Official Records of the General Assembly,
Twenty-sixth Session, Annexes, agenda item 88, document A/8537)
states in paragraph 136 that some representatives, "recalling the
principle nemo plus juris transferre potest quam ipse habet", expressed
disagreement "with the attempt made by the Special Rapporteur
to divide State property into the private domain a n d the public
domain". A n error must have occurred, for it is clear, on the contrary, that the Special Rapporteur made every effort t o avoid
this distinction, which is not universal.
49
Yearbook...l970, vol. II, pp. 144 et seq., document A/CN.4/226,
part two, paras. 7-23 of the commentary to article 2.
50
Yearbook...l971, vol. II (Part One), p p . 177 et seq., document
A/CN.4/247 a n d A d d . l , commentary to article 6.
61
Yearbook...l972,
vol. I I , p . 66, document A/CN.4/259,
para. 37 et seq.
62
Yearbook...l970,
vol. I I , p p . 77-78, document A/CN.4/216/
Rev.l, paras. 29-24.
24
Yearbook of the International Law Commission, 1973, vol. II
this problem is added another very real one, namely
that no hard and fast criterion exists for the determination
of "property appertaining to sovereignty".
(10) The Special Rapporteur therefore proposes that
reference should be made to the property "necessary
for the exercise" of sovereignty rather than to property
appertaining to sovereignty. The article would thus read:
category of municipal property * and for what is generally the most
important category.
The question may be left open whether the . . . [Treaty] provides
for two types of agreement..., one kind apportioning the property
of the public authorities concerned, the other ensuring "the maintenance of the municipal services essential to the inhabitants" * . . .
But, even if that were so, the criterion of the maintenance of the
municipal services necessary to the inhabitants should a fortiori play
a decisive role * when these services—as will usually be the case—
Property necessary for the exercise of sovereignty over the territory
shall devolve, automatically and without compensation, to the successor are provided by property belonging to the municipality which must
be apportioned. The apportionment should be carried out according
State.
to a principle of utility* since in this case that principle must have
of the Treaty the most compatible with
Such a formulation no doubt leaves unsolved the seemed to the drafters
53
problem of (a) what property is necessary for the exercise justice and equity.
of sovereignty and (b) what authority has the power to
determine such property. There is no precise answer to
such questions in contemporary international law.
Inevitably, recourse must be had to internal public law
inasmuch as it would be difficult to avoid in all cases and
at all times applying the public law of the successor
State. Indeed, it was for that reason that the proposed
article has been drafted in neutral language. There is no
indication as to which State, the predecessor or the
successor, will be used as a point of reference for the
determination of the "property necessary for the exercise
of sovereignty" over the territory.
Article 10. Rights in respect of the authority
to grant concessions
1. For the purposes of the present article, the term
"concession" means the act whereby the State confers, in
the territory within its national jurisdiction, on a private
enterprise, a person in private law or another State, the
management of a public service or the exploitation of a
natural resource.
2. Irrespective of the type of succession of States, the
(11) It could be argued that the juridical order of the successor State shall replace the predecessor State in its
predecessor State should automatically be used to deter- rights of ownership of all public property covered by a
mine the property necessary for the exercise of sovereignty. concession in the territory affected by the change of
If the successor State were to have a broader concept sovereignty.
of the exercise of sovereignty, which required that property
3. The existence of devolution agreements regulating
formerly regarded as unnecessary or non-determinant the treatment to be accorded to concessions shall not affect
for this purpose should pass within its patrimony, logic the right of eminent domain of the State over public
would at least appear to require that the predecessor property and natural resources in its territory.
State should not be made to pay the price for the establishment of a different political or ideological regime or a
different institutional model. The successor State should
COMMENTARY
pay that price in order to express its Weltanschauung—its
own "world view"—and to assume ownership, in this
A. Definition of a "concession"
instance with the payment of compensation or otherwise,
of property other than that which was used for the (1) The definition suggested above will probably be
exercise or the expression of the sovereignty of the included in due course in article 3, which defines the
terms used. In the meantine, certain simple components
predecessor State over the transferred territory.
of the definition are set out below.
(12) The concept of "property necessary for the exercise
of sovereignty", as defined here, is somewhat similar (2) The term "concession" can be interpreted in different
to that sanctioned by international judicial decision, ways.
which concerns the transfer of property belonging to
(a) From the standpoint of the beneficiary, it can mean
local authorities "necessary for the viability" of the local permission to manage a public service or the right to
territorial authority concerned. For example, in a dispute work mineral or mining deposits;
concerning the apportionment of the property of local
(b) From the standpoint of the conceding State, it can
authorities whose territory had been divided by a new mean an act by which the public authorities grant to a
delimitation of the frontier between France and Italy, private enterprise or a person in private law the right
the Franco-Italian Conciliation Commission set up under to undertake work of a public nature and to exploit
the Peace Treaty with Italy of 10 February 1947, noted natural resources or manage a public service.
that:
No attempt will be made in the present article to deal
. . . the Treaty of Peace did not reflect any distinctions... between
the public domain and the private domain * that might exist in the with the complex of problems the successor State faces
legislation of Italy or the State to which the territory is ceded. with regard to concessions granted by its predecessor.
However, the nature of the property and the economic use to which One aspect of these problems, which will not be dwelt
it is put have a certain effect on the apportionment*
on here, was taken up by the Special Rapporteur in his
The apportionment must first of all be just and equitable. However, the Treaty of Peace does not confine itself to this reference to
justice and equity, but provides a more specific criterion for a whole
53
United Nations, Reports of International Arbitral Awards,
vol. XIII (op. cit.), p. 519.
Succession of States in respect of matters other than treaties
second report, "Economic and financial acquired rights
and State succession".64
In particular, the term "concession" will not be used
here in the first sense, as defined above, that is, from the
standpoint of the beneficiary of the concession. It is the
fate of the rights of the conceding State in cases of State
succession which will be analysed in the present articles,
which, it should be remembered, relate to public property.
Although it is true that, as the jurists Lyon-Caen and
Renault have stated, the characteristic feature of a concession is the "juxtaposition of a contract and an act
of sovereignty",65 for the time being we shall not consider
in this study the contractual aspect of the concession,
which raises various problems relating to acquired rights.
We shall deal solely with the act of sovereignty or, in
other words, the rights of the conceding power and the
treatment accorded to them in the case of territorial
changes.
1. A concession is an act of the public authorities
(3) In the arbitral award of 3 September 1924 rendered
in the German reparations case,56 arbitrator Beichmann
recalled in the following words the definition of the
term "concession" given by the Reparations Commission:
The Reparations Commission stated, in its letter of 7 January
1921, that it had "serious reasons for considering that the word
'concession' should be understood as encompassing all rights and
privileges of an economic nature granted by the Government or
the public authorities pursuant to special legislative or administrative
measures taken by virtue of the sovereign executive powers vested
in the competent authorities, irrespective of whether that right has
been exercised and irrespective of whether its exercise constitutes
an enterprise of public utility". 57
Later, arbitrator Beichmann stated:
The Reparations Commission, in a letter dated 27 April 1921,
stated "the Commission interprets the word 'concession' as meaning
a 'right' to operate an agricultural, mining, industrial or commercial
enterprise or in a general sense as a right of an economic nature
granted by the executive authority by a special legislative measure
or by decree, by virtue of a power which is in principle discretionary
and which consequently does not derive from the simple operation
of the general law." 58
(4) In its final conclusions, the Reparations Commission
requested arbitrator Beichmann to:
State that, according to the law:
(a) The term any "concession", as used in Article 260, means
the working of the concession as well as the title or subjective right
to the concession;
61
Yearbook...1969, vol. II, p. 69, document A/CN.4/216/Rev.l.
Cited by D . Bardonnet, La succession d'Etats a Madagascar
(succession aux droits conventionnels et aux droits patrimoniaux)
(Paris, Librairie generate de droit et de jurisprudence, 1970),
(Bibliotheque de droit international, t. LVII), p. 210, foot-note 241
in fine.
66
Case of German reparations under article 260 of the Treaty
of"Versailles, Arbitral award concerning the interpretation of article 260
of the Treaty of Versailles (arbitrator F. W. N. Beichmann), publication de la Commission des reparations, annex 2145 a, (Paris, 1924)
and United Nations, Reports of International Arbitral Awards,
vol. I, (United Nations publication, Sales No. 1948.V.2), pp. 429-528.
« Ibid., p. 469.
58
Ibid.
55
25
(6) The use of this term cannot be limited to concessions granted
for the operation of a public utility undertaking;
(c) It does not necessarily entail the granting to the concessionaire
of privileges appertaining to the public power;
(d) The granting of a concession does not necessarily depend
upon the executive power acting in a discretionary manner;
(e) For a concession in the sense in which that term is used in
Article 260 to exist, it suffices that the State or one of its authorities
has granted a right to a beneficiary in connexion with matters
relating to the public or private domain of the State or its eminent
domain;
( / ) Any act by which a third party obtains from the public
authoiities the right:
To use permanently oi temporarily part of the public or private
domain belonging to the State or its administrative districts;
To undertake public works for the purposes of a public service
or a public utility undertaking;
To begin and continue working property of any kind that the
State has withdrawn from the regime of free competition or free
appropriation and for the attribution of which it has reserved for
itself a right of control and decision in the form of the granting
of concessions;
shall constitute a concession in the sense in which the term is used
in Article 260.
"Consequently to declare that the granting of the right to work
the following, and the working thereof itself constitute concessions
in the sense in which that term is used in Article 260:
"(a) Coal mines, iron mines or other minerals or petroleum
deposits in China, Bulgaria and Turkey;
"(b) Coal mines, iron mines or other minerals in the territories
ceded by Germany, and in the German colonies placed under
mandate;
"(c) Coal mines, iron mines and other minerals in Austria,
Hungary, and the territories ceded by Austria and Hungary, and
the petroleum deposits ceded before the promulgation of the
Act of 11 May 1884, under the regime established by the Act
of 1854;
"(d) Common salt mines and deposits, potassium salts as
mentioned in the Hungarian Act VII of 1911 and the deposits of
mineral oils and gases as mentioned in the Hungarian Act VI
Of 1911;
"(e) Coal mines, iron mines or other minerals in the crown
lands, in Russia, and salt mines within the country itself." 59
(5) The arbitrator decided that
if the term "concession" is to be correctly u s e d , . . . the r i g h t . . . to
work the mine or deposit must have been granted to the beneficiary
by an act of the public authority . . . . That act must be a special act
referring to a specific beneficiary. An act, which for example, giants
to the owners of the surface in general the right to all or some of
the mineral wealth beneath their soil does not constitute a concession.
On the other hand, the act need not necessarily be an act of the
executive branch . . . . There is nothing to prevent it being an act of
the legislature, provided it is of the special nature indicated above.
That is merely a question of constitutional law which should not
be accorded any importance in determining the meaning of the
term "concession". 60
59
60
Ibid., p. 470.
Ibid., pp. 473-474.
26
Yearbook of the International Law Commission, 1973, vol. fi
2. A concession is an act granting permission to manage
a public service or exploit a natural resource
(6) The activities relating to management, exploitation
or implementation in the domain of the State entrusted
to a person in private law by the public authorities
are usually temporary, or more precisely of limited
duration, even when the concession instrument provides
that they are to continue for a long period of time.
Furthermore, such activities are usually distinguished
by the fact that they exclude all property rights over the
soil or subsoil of State territory.
Hence, the Beichmann award mentioned above states
that "an act which, for example, grants to the owners
of the surface in general the right to all or some of the
mineral wealth beneath their soil does not constitute a
concession".
(7) Resolution 530 (VI) of 29 January 1952, in which
the General Assembly of the United Nations adopted
"Economic and financial provisions relating to Eritrea",
contains an article X denning a concession, which reads
as follows:
Article X
1. In this article:
(a) "concession" means a grant by the former Italian administration or by the Administering Power or by a municipal authority
of the enjoyment in Eritrea of specific rights and assets in exchange
for specific obligations undertaken by the concessionaire with regard
to the use and improvement of such assets, such grant being made
in accordance with the laws, regulations and rules in force in
Eritrea at the time of such grant."
or topography, make use of their own sea coasts or
harbour facilities, enjoy general transit rights which
constitute "an essential factor of sovereignty over natural
resources if that sovereignty is interpreted to include
the right freely to dispose of those resources or their
derivative products". 63 For example, the treaties and
conventions concerning the dissolution of the SwedishNorwegian Union in 1905 include a Convention Regarding
Transit Traffic,61 which provides for the transportation
of iron ore from northern Sweden to the Norwegian
port of Narvik by the Lapland Railway. Similarly,
Belgium and Northern Rhodesia respectively enjoyed
transit rights through Angola and Mozambique for the
exportation of copper ore from Katanga and Rhodesia. 65
(10) Furthermore, States have often concluded agreements concerning mining rights granted by one in the
territory of the other for the working of frontier deposits.
As to international pipelines, there are many bilateral
agreements for economic co-operation or defence purposes permitting one State to construct or operate such
facilities in the territory of the other. Water resources
common to two or more States are often the subject
of inter-State arrangements covering the exploitation
of such resources.
(11) Lastly, States may enjoy, in the territory of one or
more other States, treaty rights laid down in multilateral
agreements such as those establishing the European
Communities, which involve acceptance by States of
"restrictions of their sovereignty over certain natural
resources in return for the possibility of realizing certain
common ends and securing certain common benefits." 66
3. The concessionaire is a private person or enterprise
or sometimes even a State
(8) In a concession, the recipient and beneficiary of the
act of the public power is generally a person in private
law. But there are cases involving treaty rights enjoyed
by certain States in the territory of one or more other
States, that is, cases involving concessions of which a
State is the beneficiary. According to a study by the
United Nations Secretariat, 61 these cases involve mainly
transit rights, mining rights, in connexion with the construction of international pipelines and water rights.
(9) Transit rights, which are granted under bilateral
agreements following territorial changes, enable States
to use their road or rail routes despite the fact that they
cross territories which have become foreign territory
as a result of boundary changes. 62
A number of countries, mainly land-locked countries
and countries which cannot, for reasons of climate
61
The Status of Permanent Sovereignty over Natural
Wealth
and Resources (Study by the Secretariat) [referred to hereafter
as "the Secretariat study"] //. Report of the Commission on Permanent
Sovereignty over Natural Resources (United Nations publication,
Sales N o . 62.V.6).
62
T h e Secretariat study gives many relevant examples: Czechoslovak and Polish railway lines which pass over short stretches
of the other State's territory; the line between Aleppo (Syria)
and Mosul (Iraq); the line between Niirala and Parikkala (Finland),
which runs over some 85 miles of USSR territory; special arrangements relating to Greek a n d Turkish transit traffic on the railway
line between Istanbul and Svilengrad (Bulgaria) a n d so on.
B. "Rights in respect of the authority
to grant concessions" and their legal nature
(12) The Special Rapporteur feels it is quite inappropriate
to consider the successor State as "subrogated" to the
rights of the predecessor State, or as "succeeding" to the
latter with, regard to its rights in respect of the authority
to grant concessions. Similary, it would be erroneous
to consider those rights as being "transferred" to the
successor State. The phenomenon under consideration
cannot be correctly described as subrogation, succession
or transfer. All these legal concepts have the drawback
of implying that the successor State exercises the actual
rights of the predecessor State through subrogation,
succession or transfer.
The Special Rapporteur believes, on the contrary, that
the successor State exercises its own rights as a new
conceding authority, which replaces the former conceding
authority. The successor State acquires, by virtue of its
65
Secretariat study, p . 76, para. 72.
G. F . de Martens, ed., Nouveau Recueit general des traites
(Leipzig, Dieterich, 1907), 2nd series, vol. XXXIV, p p . 708-710.
" Convention of 21 July 1927 between Belgium and Portugal,
regarding the Katanga traffic through the Port of Lobito a n d the
Benguela Railway (League of Nations, Treaty Series, vol. LXXI,
p. 445). As is well known, Zambia is at present facing a critical
problem as regards transit rights for its copper. T h e Secretariat
study analyses other cases concerning other countries (see pp. 77-78,
paras. 78-88).
66
See the Secretariat study, p p . 80-87, paras. 111-167.
64
Succession of States in respect of matters other than treaties
sovereignty, the title of owner of the soil and subsoil
of the transferred territory.
(13) In one of his reports, the Secretary-General of the
United Nations has stated:
Sovereignty over natural resources is inherent in the quality of
statehood and is part and parcel of territorial sovereignty *—that is,
"the power of a State to exercise supreme authority over all persons
and things within its territory".67- 68
The Special Rapporteur considers that this conception
of sovereignty is irreproachable and is bound to exclude
any idea of subrogation, succession or transfer in the
exercise of rights in respect of the authority to grant
concessions. This problem is not made clearer by the
formulation of treaty provisions, especially in devolution
agreements. 69 It is clear, however, that contracting
parties are concerned less with legal propriety than
with adapting their respective rights and obligations
to their own convenience.
(14) It might be objected that if the successor State
possesses rights in respect of the authority to grant
concessions not as a successor but as a State, those
rights should fall outside the scope of a study of State
succession. That is largely true and it seems a priori
that the problem of concession should be excluded from
the topic of State succession. Except for cases where
the concession is granted to a State, the sovereign act
authorizing the occupation and working of the public
domain falls exclusively within the internal juridical
order of the State.
In the Special Rapporteur's opinion, the question of
rights in respect of the authority to grant concessions
is not relevant to the study of succession of States in
respect of legislation. The fact that the successor State
"receives" the internal juridical order of its predecessor
should not automatically imply that the concessionary
regime is thereby renewed. More precisely, that fact is
neither necessary nor sufficient, it is simply irrelevant.
For as soon as the successor State is considered to be
exercising its own rights in respect of the authority to
grant concessions when it "takes over" existing concessions,
the renewal or rejection of the legislation of the predecessor State clearly has no effect on the problem. The
fact that concessions granted previously are taken into
consideration is the result, not of the renewal of the
municipal law of the predecessor State, but of the exercise
of the rights of the new granting authority, in other
words, the expression of the will of a new State.
67
Here t h e Secretary-General is quoting L . Oppenheim,
International Law: A Treatise. 8th ed. [Lauterpacht] (London,
L o n g m a n s , Green, 1955), vol. I, p . 286.
68
A/8058, para. 1.
69
Paragraph 2 of t h e preamble to t h e "Declaration of Principles
on Co-operation for the Development of the Wealth of the Saharan
Subsoil" signed on 19 March 1962, states that "Algeria shall inherit
the rights, prerogatives and obligations of France as a public
power granting concessions in the Sahara, for the application of
the mining and petroleum legislation..." (Journal officiel de la
Republique francaise, Lois et Decrets (Paris), 20 March 1962,
94th Year, No. 67, p. 3026.)
C.
27
Obligations in respect of concessions,
a question to be left pending
(15) In fact, in the context of the present articles, which,
it should be remembered, concern public property, the
Special Rapporteur cannot take up the problem of concessions in all their aspects (some of which relate to the
succession of States in respect of legislation, while others
concern the questions of acquired rights and international
responsibility). The concession contract gives rise not
only to rights but also to obligations, and at a subsequent
stage it will be necessary to specify the way in which
succession of States influences the fate of those obligations.
However, the Special Rapporteur is not concerned with
this matter for the time being, and has singled out the
aspect of the concession question relating to the rights
(and not the obligations) of the conceding authority,
which in his view automatically belong to the successor
State as essential attributes of its sovereignty.
The article which the Special Rapporteur proposes
for consideration by the Commission could have no
other purpose, since it is concerned with public property.
It simply recognizes the rights of the successor State
without indicating, for the time being, how and to what
end they should be exercised (maintenance or termination
of the concession).
(16) It would be another thing entirely to specify the
treatment which should be meted out to the concession
as such, for to shift thus from the problem of the rights
of the conceding authority to the obligations of the latter,
would be to pass from the domain of public property,
which is the subject of the present study, to that of contracts or concessions stricto sensu, and to that of acquired
rights, which the Special Rapporteur will take up at a
subsequent stage of his work. That is why he does not
intend to study at the present stage the substantive
questions relating to concessions, that is, making the
maintenance of concessions dependent upon proof that
they benefit the ceded territory, termination of "odious"
concessions, termination of concessions granted mala
fide and the question of royalties. 70
(17) The Special Rapporteur considers, however, that
the approach which has made it possible to define the
rights of the conceding authority as not deriving from
subrogation, succession or transfer will subsequently
provide a basis for resolving the problem of obligations.
If the concession is the expression of a sovereign act
of the public power, that is a voluntary commitment to
an individual or a State which is the beneficiary of the
concession, the International Law Commission knows
how to approach this commitment or, in other words,
this consent to be bound. No matter how a concession
may differ in nature from a treaty (and they do not
differ at all when the concession is granted in a treaty),
it would be advisable to envisage applying to concessions,
mutatis mutandis, the same rules adopted for treaties
in the draft articles on succession of States in respect
of treaties.
70
However, Charles Rousseau, in particular, studies all these
questions in the context of succession to public property. Cf.
Rousseau, op. cit., pp. 190-237.
28
Yearbook of the International Law Commission, 1973, vol.
Article 11. Succession to public debt-claims
1. Irrespective of the type of succession of States, public
debt-claims which are proper to the territory affected by
the change of sovereignty shall remain in the patrimony of
that territory.
2. The successor State shall, when the territorial change
is effected, become the beneficiary of the public debts of
all kinds receivable by the predecessor State by virtue of
the exercise of its sovereignty or its activity in the territory
concerned.
COMMENTARY
(1) Article 11 concerns one aspect of the question of
intangible property and rights. Some general reflections
on this category of property will be followed by commentaries relating specifically to article 11.
A.
Introduction
(2) Article 11 and the following articles to some extent
represent the lex specialis as opposed to the lex generalis
laid down in article 9 above.
Bluntschli at one time proclaimed the rule that "the
property * of States which have ceased to exist passes,
actively or passively, to the successors of such States". 71
In another rule he dealt with the question of "public
treasuries", which he apportioned among several successors in proportion to population because "it is necessary
to go back to the fundamental element of the State, i.e.
man, in order to find an equitable and reasonable
solution". 72 The writer used the term "property" in the
broad sense which was given to it at the time and which
covered "private property belonging to the Treasury, for
example, some industries, some land, and cash". 73
(3) Today, the Treasury, public funds, the currency,
State bank deposits, gold reserves of the institution of
issue, public debt-claims, tax revenue, State resources,
and so on are for the most part property appertaining to
sovereignty over the territory and its inhabitants, constituting financial means by which or in respect of which
this sovereignty is expressed. The legal character of the
right to coin money or the privilege of issue, the right to
levy taxes, the power of the public authority to take
coercive measures to recover debts to the Treasury,
Customs duties or public debt-claims is such that it
would be inconceivable for the predecessor State to retain
these rights and powers.74
71
J. K. Bluntschli, Le droit international codifie, 5th ed. revised
and augmented, translation into French by M. C. Lardy, 2nd ed.
(Paris, Alcan, 1895), p. 85 (rule 54).
72
Ibid., p . 87 (rule 58), commentary t o rule 58.
73
Ibid., p . 85, commentary t o rule 54.
74
A letter dated 5 September 1952, from Mr. D. L. Busk, British
Ambassador to Ethiopia, to the Ehiopian Minister for Foreign
Affairs, specified that "transfer of power in Eritrea to the Imperial
Ethiopian Government and to the Eritrean Government shall
take place on a 'going concern' basis, that is to say, the existing
British Administration will collect all revenue and pay all expenses
of administration (including third-party claims...) up to 15 September, 1952". (Exchange of notes constituting an agreement
between the Government of the United Kingdom of Great Britain
and Northern Ireland and the Government of Ethiopia regarding
(4) This does not necessarily mean that all such patrimonial rights or property belong to what is known in
some systems of law as the "public domain" of the State,
or that they alone belong to it. Such intangible rights as
debt-claims or income from a commercial activity of the
State may come under the "private domain" in countries
where this concept exists or, to put it differently, under
the jus gestionis as opposed to the jus imperii, which
characterizes other State activities directly connected
with the exercise of sovereignty.75
Taking this as his starting point, Professor Guggenheim
writes, in particular, that
. . . State revenue... is considered in most countries to belong
to the private domain and as such, to be governed by the civil law.
The disposal of State revenue is a matter which must * be settled by
agreement between the ceding State and the ccssionary State.76
In point of fact, State revenue is governed by public
law to an increasing extent in most States. The existence
of treaty provisions, which are, moreover, extremely rare
(see article 256 of the Treaty of Versailles), is hardly
sufficient to warrant the conclusion that an obligation
exists to determine the disposal of State revenue by agreement. The purpose of this comment is mainly to emphasize, as will be done again later, that a customary rule
regarding succession to revenue from taxation exists in
the very frequent cases where the matter is not settled by
agreement.
(5) According to Professor Guggenheim, an agreement
would be particularly useful
where the predecessor State is not incorporated into the successor
State and therefore continues to e x i s t . . . . If the State is dismembered, its revenue becomes part of the property to be covered by
the settlement. At the cime of apportionment, items are usually
allocated to the State in which they are situated but are nevertheless charged aginst its share. Where a State ceases to exist and
there is only one successor State, the latter acquires not only the
State revenue in the territory of its predecessor but also its revenue
in third countries.77
But where a State has ceased.to exist, there is generally
no agreement on the devolution of revenue, and where
there is more than one successor State, the agreement, if
any, is concluded among these States.
The writer himself limits the scope of his rule by
confining its application to taxes: "Immovable * property
nevertheless passes to the successor S t a t e . . . if the
latter accepts the charges encumbering that property." 78
In the opinion of the Special Rapporteur, there is an
imperative obligation to devolve all public property
financial arrangements on the establishment of the Federation of
Eritrea with Ethiopia, Addis A b a b a , 5 a n d 6 September 1952
(United Nations, Treaty Series, vol. 149, p . 58).
Although the term "going concern" m a y be reminiscent of business
procedures, it is n o n e the less expressive, indicating that the territory
has to be transferred with all its financial machinery, as it previously
existed (taxes, Customs, currency, Treasury) and operating normally.
75
See inter alia P . Guggenheim: Traite de droit
international
public, 1st ed. (Geneva, Georg, 1953), pp. 467-468, n o t e 2.
76
Ibid., p p . 468-469.
77
Ibid., p . 469.
78
Ibid., p . 468, note 2.
Succession of States in respect of matters other than treaties
appertaining to sovereignty, more especially resources,
debt-claims and public funds. 79
B.
Patrimonial rights "defined by law"
(6) The question here is whether all tangible rights, both
acquired or potential, pass to the successor State. A
number of decisions by national courts, particularly by
the Polish courts after the First World War, can be cited
which interpret succession to public property and to all
rights acquired or to be acquired in the broadest and
fullest sense. 80
Succession to "rights" and particularly to "interests", a
term which, as we have seen, is very vague, implies that
it is open to the cessionary State to assert future claims
and rights still to be acquired. There are even examples of
provisions going beyond succession to rights still to be
acquired or to interests. Article 1 of the Convention
between the United States and Denmark of 4 August 1916
concerning the cession of the Danish West Indies calls
for the cession to the United States of "all territory,
dominion and sovereignty, possessed, asserted ox claimed *
by Denmark." 81
Another example is article 1 of the Treaty of Paris
(1861) whereby His Most Serene Highness the Prince of
Monaco renounced
in perpetuity, on his own behalf and on behalf of his successors,
in favour of His Majesty the Emperor of France, all direct or
indirect * rights over the communes of Menton and Roquebrune,
irrespective of the origin and nature * of his rights thereto.82
(7) Some decisions go so far as to recognize the right of
the successor State to demand payments to be made to a
third party. In 1866 the Prussian State had concluded an
79
D . Bardonnet, op. cit., p p . 573-574, considers that there is
"a presumption of succession to public property in general,
whether part of the public or private domain, whether immovable
or movable... Exceptions to the principle of total transfer must be
expressly provided for in the treaties and must be strictly
interpreted."
In a work by one of the authors who has attempted to codify
international law (J. Intcrnoscia: New code of international law
1st ed. (New York, The International Code Company, 1910,
p. 54) we find a rule 310, reading as follows: "A State that inherits
must assume the charge of... (3) the money and property of the fisc
(I'argent et les biens du fisc; il denaro e la proprieta del fisco)",
and a rule 313 which states: "The money, forests, lands and, in
general, all movable and immovable property of the treasury
of the extinct State becomes its property." (The reference here is
to "loss of the whole territory".)
80
See, for example, Supreme Court of Poland, Polish State
Treasury v. Skibniewska (1928), in A. D. McNair and H. Lauter-
pacht, eds., Annual Digest of Public International Law Cases,
1927-1928 (London, 1931), Case N o . 48, p p . 73-74, which interprets
article 208 of the Treaty of Saint-Germain-en-Laye (providing
for the transfer of all "property and possessions" to the successors
of Austria-Hungary) as including all claims as well.
81
English text in Supplement to the American Journal of International Law (New York, 1917), vol. I I , p . 5 5 ; French text in Revue
generate de droit international public (Paris, 1917), t. XXIV, p . 454.
With regard t o property "claimed" by Denmark, the predecessor
State, see the commentary t o draft article 2, paragraph 2 (property
in irregular possession), in the fourth report (Yearbook... 1971,
vol. II (Part One), p p . 168-169, document A/CN.4/247 a n d A d d . l ,
Part Two, paras. 9-12 of the commentary to article 2).
82
G . F . de Martens, ed., Nouveau Recueil general de traites
(Gottingen, Dieterich, 1869), vol. XVII, part II, p . 56.
29
agreement with a city, subsequently ceded to Poland,
under which the city was required to contribute towards
the upkeep of a secondary school. The Supreme Court
of Poland found that the successor State had acquired
the rights which the Prussian State derived from the
agreement of 1866 even if this were a right to demand
payments to be made to a third party, the school having a
separate legal personality. 83
C.
Observations on article 11
(8) In the opinion of the Special Rapporteur, the rule set
out in this article is applicable to all types of succession of
States. That is why he has placed this article in the part
relating to common provisions. Consequently, he merely
draws attention to the commentary in his fourth report. 84
IV. PROVISIONS RELATING TO EACH TYPE
OF SUCCESSION OF STATES
INTRODUCTION: TYPES CONSIDERED
20. As recalled earlier, 85 the Special Rapporteur, in
his third, fourth and fifth reports, submitted articles
drafted on the basis of a uniform approach, designed to
cover all possible types of succession. He does not know
whether he succeeded in that task, but he is well aware of
its complexity and of the risks involved.
21. It is likewise in order to facilitate the Commission's
initial consideration of this subject that the Special
Rapporteur is reverting to the analytical method, at the
risk of undertaking a repetitive and fragmentary task
and hence of drawing up a tedious catalogue, only to
discover in the final analysis that a number of problems
are solved in the same way, irrespective of the type of
succession involved. There will always be time, however,
to rearrange some of the articles at a later stage of the
Commission's work.
22. There remains the problem of the number of cases
of succession to be studied for that purpose. Here again,
to facilitate the Commission's consideration of the draft,
the Special Rapporteur intends to adopt, by and large,
the distinctions suggested by Sir Humphrey Waldock and
approved by the Commission in connexion with its study
of the draft articles on succession of States in respect of
treaties. As is well known, it was relatively easy (and
ultimately more profitable) to base that study on the law
of treaties, which is already more developed. It was
definitely advantageous to approach the succession of
States in respect of treaties through "channels" which
were already familiar. A priori, one might expect it to be
equally advantageous to link the current draft, which
has not been codified, to another draft which has. That
approach, however, clearly has its limitations.
83
Supreme Court of Poland, Case of the Polish State Treasury
v. City of Gniezno (1930), in H. Lauterpacht, ed., Annual Digest...
1929-1930 (London, 1930), Case No. 31, p. 54 (quoted in Yearbook...
1963, vol. II, p. 133, document A/CN.4/157, para. 336), and other
similar cases.
81
Yearbook...1971, vol. II (Part One), pp. 185 et sea., document
A/CN.4/247 and Add.l, commentary to article 9.
86
See paras. 10-12 above.
30
Yearbook of the International Law Commission, 1973, vol. JQ
23. In any event, we shall study the cases of succession
as defined in connexion with succession of States in respect
of treaties, namely "(a) transfers of territory; (/>) newly
independent States; (c) the uniting of States, the dissolution of a State and the separation of part of a State".88
Basically, these are the categories which will be studied,
even if the nature of the material dealt with leads the
Special Rapporteur to define these types of succession in
a slightly different way.
not refer to this event as a uniting of States or the dissolution of a union, since that would imply that the French
Establishments in India had previously been States.
Since they had not been States, they cannot be said to
have been completely absorbed by another State, namely
India. Lastly, this case cannot be classified as secession
by the separation of part of the territory of a State, since
it does not involve the detachment of territory or the
creation of a new State.
24. The difficulty of selecting the right approach
obviously derives from the dreadful complexity characteristic of the material relating to succession of States.
It must be admitted that it also results from the fact that
the same case of State succession can be defined in several
different ways: the end of the Habsburg dynasty at the
end of the First World War is simultaneously the extinction
of a State (viewed from the angle of the disappearance of
the Austro-Hungarian Empire), the dismemberment of a
State (viewed from the same angle), the dissolution of a
State or a separation of States (Austria and Hungary),
and the emergence of new States (the parts of the territory
of the Empire other than Hungary and Austria which
became States or regained the status of States, such as
Czechoslovakia and Poland). This extinction of the
Austro-Hungarian Empire can also be regarded as the
occasion for the restoration or resurrection of a State
(Poland), or as a partition among existing States and new
States (the latter being of two kinds, resuscitated States
and territories which became States).
26. Our task is complicated by a certain inconsistency
in the definition of phenomena when they are approached
for this purpose not from one angle (for example, from
the angle of the predecessor State or that of the successor
State), but from two angles indiscriminately and with a
tendency to shift from one to the other without prior
warning or limitation. It is doubtless this fact which
prompted our former colleague, Professor Herbert Briggs,
to say in 1963 that no two jurists described a case of
succession in the same terms.
25. Although there are only too many options available
when classifying a case of this type, there are other cases,
which, on the contrary, cannot possibly be classified in a
satisfactory way. The types of succession singled out by
the Commission leave no scope for a historical consideration of cases of colonization. Similarly, another case of
succession of States, which is likewise not an isolated one,
will serve to demonstrate the limitations of the options
available, despite the Commission's genuine effort to
cover all cases. This is the handing over of the French
Establishments in India to the Indian Union in 1954.
This was not a partial transfer of territory from one
State to another. Such an operation would imply that
the territory was detached from one State and attached to
another. However, the United Nations Declaration on
Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance
with the Charter of the United Nations (General Assembly
resolution 2625 (XXV), annex), specifies that the territory
of an entity which is still dependent has a status separate
and distinct from the territory of the colonial Power. It
cannot be argued that the Declaration is not applicable
to the case because it was adopted after the events of
1954.s' Furthermore, this case does not concern a newly
independent State, since the Establishments in question
did not constitute a State. Similarly, one can obviously
88
Yearbook...l972, vol. II, p. 229, document A/8710/Rev.l,
para. 45.
87
Moreover, the Special Rapporteur believes, if he is not
mistaken, that the French Establishments in India were not
considered as forming part of "French territory" stricto sensu,
even in French law.
27. Which classification of the various types of State
succession should we adopt? 88
88
Some examples of the classifications adopted by various
writers are given below: Bluntschli {Le droit international codifie,
translated from German by Mr. C. Lardy, 2nd ed. (Paris, Guillaumin, 1874), pp. 76-84) considers four types: (a) the disappearance
of States; (b) the cession of territory; (e) annexations and (d) the
replacement of one State by others. The Dictionnaire de la terminologie du droit international (Paris Sirey, 1960, p. 587) defines
"succession of States" by referring to four types of succession:
(a) complete incorporation; (6) partial annexation; (c) partition
and (d) creation of a new State. A. Bonde (Traite eUmentaire de
droit international public (Paris, Dalloz, 1926), pp. 114-128) considers
(a) the transformation of the territorial composition of States
through dismemberment or annexation and (b) the disappearance
of States through dispersion, destruction of their territory, annexation to another State or incorporation. P. Fiore (// diritto internazionale codificato e la sua sanzione giuridica, 5th ed,, enl. (Turin,
Unione tipograffico-Editrice torinese, 1915), pp. 151 et seal) considers
(a) separation from an established State; (b) restoration; (c) the
State formed by the uniting of several other States; (d) complete
annexation and (e) partial cession of territory. A. S. de Bustamante
y Sirven {Droit international public, French translation by Paul Goule,
1934-1939, (Paris, Sirey, vol. Ill, 1936), pp. 273-342) draws a
distinction between "cases in which the affected State survives"
(through (a) independence; (b) dismemberment and (c) partial
annexation) and "succession proper, entailing the disappearance
and extinction of the State", (through (a) absorption by another
State, (b) disintegration or partition and (c) merger and union).
F. Despagnet (Cows de droit international public, 3rd ed. (Paris,
Larose et Tenin, 1905), pp. 98-118) draws a distinction between
the extinction of States and cases involving changes in States,
i.e. complete or partial annexation and the formation of a new
State by separation. L. Cavare {Le droit international public positif,
3rd. ed. (Paris, Pedone, 1967), vol. I, pp. 367-416) uses the following
classification: (a) new States formed by detachment from another
State; (b) changes in the territorial composition of the State as
a result of enlargement or diminution (cession, annexation);
(c) changes in the international legal constitution or international
form of the State (diminution) of its personality when it becomes
a member of a federation, a union of States or a real union, or
becomes a protected State, and expansion of its personality in cases
involving secession from a federation or confederation, the
acquisition of unitary form by a federal State, and the disappearance
of a protectorate). Charles G. Fenwick {International Law, 3rd ed.
(New York, Appleton-Century-Crofts, 1948) draws a distinction
between universal succession (absorption by annexation, absorption
by incorporation into a federal union and division of one State
into a number of separate States) and partial succession (partial
annexation, independence of a State which was previously a
protectorate or a member of a confederation). Max S0rensen
Succession of States in respect of matters othet than treaties
28. An attempt to clarify the matter would certainly be
welcome. Hans Kelsen rightly tried to reduce the whole
problem of classifying the succession of States 89 to the
acquisition of a territory by the successor State and the
loss of that territory by the predecessor State. This
phenomenon of "acquisition-loss" may or may not be
accompanied by the creation of a State or the disappearance of the predecessor State. In other words,
according to Kelsen it involves:
1. The acquisition of a territory, i.e. a territory becomes the
territory of a given State, either by being added to the territory of an
existing State which thus becomes larger, or by becoming the
territory of a State which did not previously exist and thus comes
into being; and
2. The loss of a territory, i.e. a territory ceases to be part of the
territory of a given State, either because the territorial domain of
the latter has been reduced or, in cases involving the loss of all the
territory of the State, because the latter has completely disappeared.90
In view of the foregoing, he formulates the following classification:
1. Part of the territory of one State becomes part of the territory
of another State,
2. Or becomes a new State,
3, The whole territory of one State becomes part of another State,
4. Or is partitioned among several existing States,
5, Or becomes the territories of several new States,
6, Or becomes the territory of one new State.91
29. By following as closely as possible the classification
adopted by the Commission, one could probably envisage,
{Manual of Public International Law, London, MacMillan, 1968)
employs the following classification: (a) total absorption by complete
annexation; (b) the disintegration of a State; (c) secession through
rebellion; (d) cession of... territory and (e) the formation of federations or unions of States. D . P. O'Connell (International Law,
2nd ed. (Stevens, London, 1970), vol. I, p. 365) considers that
territory can be transferred from one State to another in at least
five ways (cession, annexation, emancipation or independence,
union, federation). In these five cases one sovereignty replaces
another, either wholly (complete annexation) or only partially.
Oppenheim (International Law: A Treatise, 7th ed. [Lauterpacht],
London, Longmans, Green, 1948), vol. I) draws a distinction
between (a) universal succession (absorption, dismemberment) and
(6) partial succession (independence, cession of territory, establishment of a federal State, accession of a protectorate to full sovereignty).
K. Strupp "Les regies generates du droit de la paix", Recueil des
cours... 1934-1 (Paris, Sirey, 1934), pp. 255-595) distinguishes
between: (a) secession-independence; (b) complete annexation;
(c) entrance of a State into a federal union or its absorption into
another State and (d) dismemberment, in which a whole series of
States are established on the territory of another, which has
disappeared as a result of revolutionary or other action (p. 473).
He reduces all these phenomena to two categories, i.e. (a) complete
extinction of a State and (b) partial changes (p. 474). Accioly
(Traite de droit international public, French translation by
Paul Goule (Paris, Sirey, 1940), vol. 1, pp. 190-200) uses the
following classification; (a) absorption or annexation of all or
part of the territory of a State; (b) division or dismemberment
of a State; (c) complete or partial extinction of a State (p. 191).
He then goes on to consider the effects of each case, and classifies
them as follows: (a) complete annexation; (b) merger; (c) partial
annexation and (d) separation or dismemberment.
88
Obviously, this problem does not concern cases of succession
of Governments.
90
H. Kelsen: "Theorie generate du droit international public —
Problemes choisis", Recueil des cours..., 1932-IV (Paris, Sirey, 1933),
vol. 42, p. 315.
91
Ibid., pp. 315-316.
31
at least in the realm of pure logic, a double classification
of cases of State succession according to whether a new
State was created and whether the predecessor State
disappeared. Each of these main categories would thus
contain two subcategories, as follows:
(a) Succession without the creation or disappearance of a State
(case of partial transfer of territory);
(b) Succession by creation of a State not entailing the disappearance of the predecessor State (case of newly-independent
State);
(c) Succession by creation of a State and disappearance of the
predecessor State or States (cases of uniting of States, dissolution
of unions, merger, and creation of "composite" States);
(d) Succession without the creation of a State but entailing the
disappearance of the predecessor (absorption, extinction, complete
integration and partition among several States);
(e) Lastly, the special case of separation of part of a State (secession).
30. We shall now study each of these types separately.
A. Succession without the creation or disappearance
of a State (case of partial transfer of territory)
31. The Commission considered "transfer of territory"
in the draft on succession in respect of treaties. This
involves cases of partial secession or annexation, the
rectification of boundaries, the attachment of territory,
and generally speaking the cases defined by the Commission as those "when territory under the sovereignty
or administration of a State becomes part of another
State" (article 10 of the Commission's draft). The
commentary on that article states that the latter covers
cases where territory not itself a State undergoes a change of
sovereignty and the successor State is an already existing State.
The article thus concerns cases which do not involve a union of
States or merger of one State in another, and equally do not involve the emergence of a newly-independent State.92
32. The Special Rapporteur therefore finds it convenient
to use this definition and the commentaries thereon,
except that he prefers to describe the transfer of territory"
as "partial" in order to distinguish it from cases involving
a complete transfer of territory, which implies the disappearance of the predecessor State. Here, on the contrary,
we are concerned exclusively with the partial transfer
of territory, i.e. succession without the creation or
disappearance of a State.
B.
Succession by creation of a State not entailing
the disappearance of the predecessor State (case of
newly-independent States)
33. This type of succession was likewise singled out
by the Commission; it involves the cases of so-called
"accession to independence" or "decolonization". In
fact, succession by the creation of a State not entailing
the disappearance of the predecessor State covers a
broader range of cases than those just mentioned,
including secession, or separation through the detachment
92
Yearbook...l972, vol. II, p. 249, document A/8710/Rev.l,
chap. II, C, para. 1 of the commentary to article 10.
32
Yearbook of the International Law Commission, 1973, vol. II
of part of the territory of the State, whether unitary
or not, and its emergence as a separate State. 93
State "formed from two or more territories, not already
States when the succession occurred". 96
34. However, in order to follow as closely as possible
the pattern laid down in the work already done by the
Commission, and also in order to highlight the cases
involving decolonization and to evaluate, in accordance
with the repeated requests of the General Assembly,
their contribution to the theory of State succession, the
Special Rapporteur will consider under this heading
only the cases of "newly-independent States", a term
which he will continue to use. 94
Consequently, he will use the definitions adopted in
this connexion by the Commission in its draft on succession in respect of treaties. The term "newly-independent
States" will have two meanings.
38. The Commission seems to have considered in this
context cases involving decolonization. However, the
creation of a State without the disappearance of the
predecessor State, which we are considering here, should
naturally include, for example, the creation of Poland
at the end of the First World War, from territories
detached from Russia, Austria-Hungary and Germany.
That, too, is a case involving the creation of a State
which has, according to the aforementioned definition
adopted by the Commission, been "formed from two
or more territories, not already States when the succession
occurred". The approach adopted by the Commission
reduces the problem to cases of decolonization alone,
and furthermore covers only the formation of a new
State from territories which were themselves under the
sovereignty of a single predecessor State, the former
metropolitan country. The case of Poland shows that
these territories may have been detached from several
predecessor States. Following the Commission in this
respect also, the Special Rapporteur will set this category
aside for the time being and will merely touch upon
it lightly.
35. First, according to article 2, paragraph 1 (/) (entitled
"Use of terms") of the Commission's draft, it "means
a State the territory of which immediately before the date
of the succession of States was a dependent territory
for the international relations of which the predecessor
State was responsible".
Similarly, it can also be used in the sense in which
it is employed in the commentary on the same subparagraph of article 2, which states that " the definition
includes any case of emergence to independence of a
former dependent territory whatever its particular type
may be" (colonies, trust territories, mandates, protectorates and so on). 9 5
36. The Special Rapporteur fears, however, that he
cannot subscribe to that part of the commentary which
states that the expression "newly-independent State"
signifies a State which has arisen from a succession of
States* in a territory...". The argument that the newly
independent State arises from a succession is not flawless
from the legal point of view. It is precisely the opposite
which is correct—that is, the problems of succession
arise from the creation of a newly-independent State.
37. Secondly, in accordance with article 25 of the
Commission's draft on succession in respect of treaties,
the definition also covers the case of a newly-independent
83
This w a s also t h e view taken by Sir H u m p h r e y W a l d o c k
in his third report (Yearbook...1970,
vol. I I , p . 27, document
A/CN.4/224 a n d A d d . l , para. 9) when h e defined t h e term "new
State" b y referring t o " a succession where a territory which previously
formed part of a n existing State h a s become a n independent State".
84
There is, of course, another reason for drawing a distinction
between accession to independence and secession. The case of
Belgium, which seceded from the Netherlands in 1830, should
not be treated in the same way as the liberation of a colony. The
Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States already cited (see para. 25
above) indicates that the sovereignty of the metropolitan State
does not extend to colonial territories (Cf. Yearbook...1971, vol. II
(Part One), p. 166, document A/CN.4/247 and Add.l, Part Two,
paras 20 and 31 of the Commentary to article 1, and in particular
note 33, which states that owing to the "otherness" of the colonial
territory, "a proclaimed independence can no longer be analysed
in terms of the secession or partial cession of a territory, since
both of these presuppose a territorial oneness of the colony and
the metropolitan country, and there is no longer any legal basis
for this".
95
Yearbook... 1972, vol. II, p. 231, document A/8710/Rev. 1,
chap. II, C, para. 6 of the commentary to article 2.
C.
Succession by creation of a State and disappearance
of the predecessor State or States (cases of uniting
of States, dissolution of unions, merger and creation
of "composite" States)
39. This is the third category adopted in 1972 by the
Commission in its draft articles on succession in respect
of treaties. Here two or more successor States emerge
from one predecessor State through the dissolution of
a union, or, in vice versa, two or more predecessor States
become a single successor State through the uniting
of States.
40. For the purposes of these articles, the Special
Rapporteur will take for granted the definition of the
uniting of States, which according to article 26 of the
1972 draft covers the "uniting of two or more States
in one State". The commentary on that article states
that it "deals with a succession of States arising from
the uniting in one State of two or more States, which
had separate international personalities at the date of
the succession",97 which "involves therefore the disappearance of two or more sovereign States and, through
their uniting, the creation of a new State". 98
41. Similarly, the Special Rapporteur will retain the
definition given in article 27 of the same draft, according
66
This occurred, for example, in the case of the United A r a b
Emirates, the federations of Nigeria, Malaysia, Ghana, Somalia
and Rhodesia-Nyasaland. See article 25 of the Commission's
draft, a n d paragraph 1 of the commentary to that article {ibid.,
p. 282).
The case of Ethiopia, which was annexed by Italy a n d liberated
after the Second World W a r , is basically a case of decolonization.
It is, however, difficult to consider Ethiopia as a "newly independent
State", unless this term is considered applicable to a State which
has regained its independence.
87
Ibid., p . 286, para. 1 of the commentary t o article 26.
88
Ibid., para. 2 of the commentary to article 26.
Succession of States in respect of matters other than treaties
33
to which dissolution occurs "when a State is dissolved
and parts of its territory become individual States" "
or "where parts of its territory become separate independent States and the original State ceases to exist". 100
it disappears to the benefit of a new State, by merger
or uniting, or to the benefit of two or more new States,
by the establishment of such States in the various parts
of its territory.
42. There is, however, one point which needs clarification : in this definition the Commission seems to be referring literally to the dissolution of a State and not to the
disappearance of a union, thus running the risk of reducing
the problem under consideration to that of the complete
dismemberment of a unitary State which splits up and
is replaced by new States established in each part of its
territory. But the examples studied at length in the
commentary indicate clearly that the article refers in fact
to the dissolution of unions.101 Moreover, "the Commission
recognized that almost all the precedents of a disintegration of a State resulting in its extinction have concerned
the dissolution of a so-called union of States". 102
46. The Special Rapporteur for his part considers the
cases envisaged in this hypothesis as being basically
invalid in the light of contemporary international law,
which prohibits the annexation, the partition or the
absorption of a State by one or more others, even though
cases of this sort do occur in practice, particularly in
the course of armed conflicts.
43. As to the composite State, which according to the
International Law Association is "formed out of several,
previously separate States or territories*",103 is it clearer
to draw a distinction between the State composed of
two or more previously separate territories, which
belongs in the category of newly-independent States
examined under B above, 104 and the State formed out
of two or more previously separate States, which belongs
in the category of uniting of States, which is the subject
of this section.
D. Succession without the creation of a State
but entailing the disappearance of the predecessor
44. This category covers the case in which the predecessor State disappears, to the benefit of a pre-existing
successor State (complete absorption, or extinction or
integration) or of two or more pre-existing States (partition of one State among two or more others). 105
45. The difference between this category and those
examined under C above is obvious. The case in which
the State disappears completely through dismemberment
and attachment of each of its parts to pre-existing States
must be carefully distinguished from that in which
99
Ibid., p . 292.
Ibid., para. 1 of the commentary to article 27.
101
Dissolution of Great Colombia, formed earlier by the uniting
of New Grenada, Venezuela and Quito (Ecuador), dissolution
of the union of Norway and Sweden in 1905, disappearance of
the Austro-Hungarian Empire in 1918, dissolution of the union
of Denmark and Iceland in 1944, dissolution of the United Arab
Republic, the Mali Federation and so on.
102
Yearbook...l972,
vol. II, p. 295, document A/8710/Rev.l,
chap. II, C, para. 12 of the commentary to article 27.
103
International Law Association, Report of the fifty-third
Conference, Buenos Aires, 1968 (London, 1969), p. 600 (Interim
Report of the Committee on the Succession of New States to the
Treaties and Certain Other Obligations of their Predecessors),
foot-note 2.
104
See paras. 33 et seq. above.
106
Of course, this category can be enlarged or complicated by
including cases involving the disappearance of the predecessor
State as a result of its partition—in the strict sense of the term—
among pre-existing States, or among two or more territories of
the same State which have become States, or among pre-existing
States and new States.
100
47. The Commission will remember that in his fourth
report the Special Rapporteur had already proposed
a draft article 1 under which
Territorial changes which occur by force or through a violation
of international law or of the Charter of the United Nations shall be
without legal effect,
and
The State which commits an act of conquest or annexation shall
not be deemed to be a successor State .. ,106
In the present report, he has recalled these comments
by submitting a draft article 2 relating to the need
to consider only cases of succession of States "occurring
in conformity with international law and, in particular,
the principles of international law embodied in the Charter
of the United Nations".
48. It will be for the Commission to decide whether
this type of "succession without the creation of a State
but entailing the disappearance of the predecessor",
which the Special Rapporteur has included here solely
with a view to complete coverage of the four types of
succession logically conceivable, is to be finally retained.
E.
Special case of separation of part
of a State (secession)
49. In order to conform as closely as possible to the
previous decisions and general approach of the Commission, the Special Rapporteur will deal separately with
the case of separation of part of a State (secession).
The Commission dealt separately with this case, for it
did not want to confuse it with that of newly-independent
States10"1 and therefore made it the subject of a special
article (article 28) in the 1972 draft.
50. The Special Rapporteur will adopt the approach
approved by the Commission in defining "separation of
part of a State" or "secession": draft article 28 states
that this occurs "if part of the territory of a State separates
from it and becomes an individual State". The commentary
on article 28 states that it is concerned "with the case
where a part of the territory of a State separates from it
and becomes itself an independent State, but the State
from which it has sprung, the predecessor State, continues
106
Yearbook...I971,
vol. II (Part One), p . 162, document
A/CN.4/247 and Add.l.
107
See paras. 33 and 34 above.
Yearbook of the International Law Commission, 1973, vol. n
34
its existence unchanged
territory". 108
except for its
diminished
51. The classification used for the present study, which
is given below, will therefore be based as closely as
possible on that approved by the Commission. It covers
the following categories:
(a) Partial transfers of territory;
(b) Newly independent States;
(c) The uniting of States and the dissolution of unions
[These three categories were retained by the Commission] ;
(d) Disappearance of a State benefiting one or more
pre-existing States;
[Category which the Special Rapporteur hopes will be
abandoned by the Commission as being no longer in
conformity with international law];
(e) Separation of part of a State (or of various parts
of different States);
[Category dealt with separately by the Commission in
a special article].
SECTION 1. PARTIAL TRANSFER OF TERRITORY
Article 12. Currency and the privilege of issue
1. The privilege of issue shall belong to the successor
State throughout the transferred territory.
2. Currency, gold and foreign exchange reserves, and,
in general, monetary tokens of all kinds circulating or
stored in the territory shall pass to the successor State.
3. The assets of the central institution of issue in the
predecessor State, including those allocated for the backing
of issues for the transferred territory, shall be apportioned
in proportion to the volume of currency circulating or held
in the territory in question.
COMMENTARY
A.
Introduction
(1) In all cases of succession of States, the problem of
the currency can be reduced to that of redefining or
equitably liquidating the juridical-financial relations
between the holders of paper currency, successor States
and predecessor States. State interventionism has long
posed this problem in terms of the relations between the
predecessor State and the successor State, but has not
thereby eliminated the great technical complexities
involved, with which, in the Special Rapporteur's opinion,
108
Yearbook...l972, vol. II, p. 296, document A/8710/Rev.l,
chap. II, C, paragraph 1 of the commentary to article 28. (Secession
of Belgium, which separated from the Netherlands in 1830), of
Cuba, (which separated from Spain in 1898), of Panama, which
separated from Colombia in 1903; of Finland, which separated
from Russia after the First World War; creation of Czechoslovakia
and Poland from the remains of the Austro-Hungarian Empire;
secession of the Irish Free State in 1922; "partition" of Pakistan
in 1947 (the Anglo-Indian agreements considered India as the
existing State and Pakistan as the new State); secession of Bangladesh (which separated from Pakistan in 1972) and so on.
the Commission need not concern itself in any detail.
Even when considered in complete isolation from its
financial aspects and strictly within the context of State
succession, this question gives rise to problems in so far
as it relates both to succession to public property and
succession to public debts.
(2) Instruments of payment generally consist of three
kinds of monetary tokens: first, the metal currency in
the strict sense, made up of the small coinage in circulation, second the bullion or gold reserves providing the
backing, and thirdly, the paper money or fiduciary
currency, whose issue is generally entrusted to a State
banking institution. The first two categories of monetary
token pose the problem of a change of sovereignty in
terms of succession to public property, while the third,
poses the problem in terms of succession to public debts.
Paper money, generally guaranteed by a gold backing,
theoretically constitutes a debt owed by the institution
of issue to the bearer of the fiduciary currency.
(3) The successor State may very well conserve the
former currency. Its discretionary power can be expressed
equally well by exercising its privilege of issue or by not
exercising it. It may content itself with symbolic formal
modifications (over-stamping, surcharges, new images)
or with a change in the name of the former unit of
currency, which is left in circulation. On the other hand,
it may introduce a new currency in the transferred
territory: this is usually the currency of the successor
State itself in the case of a partial transfer of territory,
or a new currency in cases involving the creation of a
successor State. When the new currency is introduced,
the successor State indicates the rate of exchange between
that currency and the old currency.
(4) In order to illustrate the "public debt" aspect of the
currency question, Max Huber once wrote:
Since State bank-notes as a whole constitute a debt, the regular
rules concerning the transfer of obligations are applicable. The
bank-notes shall represent a claim against the same debtor, who
retains all the backing. The situation with respect to bank-notes is
the same as that of any holder of private paper payable to the
bearer.109
Hence, it is not illogical to conclude that in so far as
the new successor State replaces the former State in the
transferred territory, taking over the obligations deriving
from the circulation or holding of paper currency in the
territory concerned, it is entitled to claim a corresponding
portion of the assets and of the backing in gold or foreign
exchange which guaranteed the fiduciary currency.
It should be noted that in the older types of succession
metal currency was the main source of concern, while
little attention was paid to the question of bank-notes,
which were considered merely as commercial paper which
would be liquidated without any intervention by the
new sovereign.
109
M. Huber, Die Staatensukzession: Volkerrechtliche und
Staatsrechtliche Praxis im XIX. Jahrhundert (Leipzig, Dunker und
Umblot, 1898), p. 108.
35
Succession of States in respect of matters other than treaties
B.
The privilege of issue
(5) Paragraph 1 of the proposed article does not call for
lengthy comment, since it is obvious that the privilege of
issue, which is an attribute of public authority, can
belong only to the new sovereign in the transferred
territory.
(6) As drafted, the paragraph does not mean that the
privilege of issue is the subject of a succession or a transfer.
The predecessor State loses its privilege of issue in the
transferred territory and the successor State exercises its
own privilege of issue, which it derives from its sovereignty. Just as the successor does not derive its sovereignty from the predecessor,110 so also it does not
receive from the predecessor an attribute of sovereignty such as the privilege of issue. The paragraph
simply states that the privilege of issue "belongs" to the
new sovereign throughout the territory affected by the
change. It is not inherited.
(7) As in the case of any right, however, a distinction
must be drawn between the possession and the exercise
of this privilege. The fact that the successor State may by
treaty allow others to exercise or continue to exercise
this privilege is evidence that it is in full possession of the
privilege, inasmuch as it has the power thus to dispose of
it. Article 3 of the Convention between the United
States of America and Denmark providing for the cession
of the Danish West Indies reads as follows:
It is especially agreed, however, that:
(4) The United States will maintain . . .
Qf) Concession of June 20th, 1904, for the establishment of a
Danish West-Indian bank of issue. This bank has for a period of
30 years acquired the monopoly to issue bank-notes in the Danish
West-India islands against the payment to the Danish Treasury of a
tax amounting to ten per cent of its annual profits.111
The United States was, of course, subrogated to Denmark,
the ceding State, with regard to collection of the 10 per
cent tax. However, practices of this kind, which were
never very widespread, are dying out, and the successor
State itself is exercising its power to coin money and
issue notes.
(8) The successor's sovereign exercise of the privilege of
issue has sometimes been limited by treaty. When Genoa
was ceded to the King of Sardinia in 1814, it was decided
that "the gold and silver currency of the ancient State
of Genoa", as they then existed, would be accepted by
the public treasury concurrently with the currency of
Piedmont. 112 Article 77 of the treaty of peace with
Turkey, signed at Sevres on 10 August 1920, 11S provided,
in connexion with the cession of Smyrna to Greece, for
110
See Yearbook..J969, vol. II, p. 77, document A/CN.4/216/
Rev.l, para. 29.
111
For reference, see note 81 above.
112
Protocol of the Congress of Vienna, draft articles annexed
to the Protocol of the meeting of 12 December 1814, in G. F. de Martens, ed. Nouveau Recueil general de traites (Gottingen, Dieterich,
1887), vol. II, p. 8.
113
de Martens, ed., Nouveau Recueil general de traites (Leipzig,
Weicher, 1924), 3rd series, vol. XII, p. 681.
the maintenance of the Turkish currency for five years.
The treaty was, however, never brought into force.
(9) Yugoslavia exercised its privilege of issue in zone B
of the Territory of Trieste by introducing first, in November 1945, a special currency, the "Yugolira", and later
the Yugoslav national currency, the dinar.
C.
Currency
(10) When Transjordan became Jordan, it succeeded to
a share of the surplus of the Palestine Currency Board,
estimated at £1 million, but had to pay an equivalent
amount to the United Kingdom for other reasons. 114
(11) The French Government withdrew its monetary
tokens from the French Establishments in India but
agreed to pay compensation. Article XXIII of the
Franco-Indian Agreement of 21 October 1954 115 stated:
"The Government of France shall reimburse to the
Government of India within a period of one year from
the date of the de facto transfer the equivalent value at
par in £ sterling or in Indian rupees of the currency
withdrawn from circulation from the Establishments
after the de facto transfer."
D. Case of partial transfers of territory
to various pre-existing successor States
(12) This case involves a number of successor States,
as a result of the transfer of several territories. The
predecessor State may continue to exist, surrendering
only part of its territory to be divided between two or
more States.
By virtue of its own sovereignty, each successor State
possesses its privilege of issue, of which it may dispose at
its discretion; no special difficulty arises here. The
question which concerns us is how the successors divide
the gold holdings, foreign exchange reserves, money in
circulation, and so forth. The disposal of this public
property is generally governed by an apportionment
agreement. It does not seem possible to enunciate a
rule for apportionment that would take into account
all the factors involved (the size of the territory's population, the comparative wealth of the territory, its past
contribution to the formation of the central reserves, the
percentage of paper money in circulation in the territory,
etc.).
(13) It must be borne in mind in this connexion that the
transfer of this paper money to the new sovereign mainly
represents succession to a debt, whereas the transfer of
the bullion reserves represent a succession to public
property. Thus the successor State usually tries to withdraw the old notes from circulation, both because they
114
See the Agreement of 1 May 1951 between the United Kingdom and Jordan for the settlement of financial matters outstanding
as a result of the termination of the mandate for Palestine (United
Nations, Treaty Series, vol. 117, p. 19).
115
English text in India, Foreign Policy of India: Texts of
Documents, 1947-64 (New Delhi, Lok Sabha (secretariat), 1966),
p. 212. French text in France, Ministry of Foreign Affairs, Recueil
des traites et accords de la France, annee 1962 (Paris, 1962), p. 535
and Journal officiel de I 'Indefrancaise (Pondicherry), 22 October 1954,
No. 105, p. 567.
36
Yearbook of the International Law Commission, 1973, vol. II
represent a debt and because this operation provides an
opportunity to manifest its new sovereign power of issue.
With the disappearance of the old Tsarist empire after
the First World War, some of its territories passed to
Estonia, Latvia, Lithuania and Poland.116 Under the
peace treaties concluded, the new Soviet regime became
fully responsible for the debt represented by the paper
money issued by the Russian State Bank in these four
countries.117 The provisions of some of these instruments
indicated that Russia released the States concerned from
the relevant portion of the debt, as if this was a derogation
by treaty from a principle of automatic succession to that
debt. Other provisions even gave the reason for such
a derogation, namely the devastation suffered by those
countries during the war.118
(14) At the same time and in these same treaties part of
the bullion reserves of the Russian State Bank was
transferred to each of these States. The ground given in
the case of Poland is of some interest: the 30 million gold
roubles paid by Russia under this head corresponded to
the "active participation" of the Polish territory in the
economic life of the former Russian Empire.
Article 13. Treasury and public funds
1. Public funds, liquid or invested, belonging to the
predecessor State and situated in the transferred territory
shall pass into the patrimony of the successor State.
2. Irrespective of where they are situated, public funds,
liquid or invested, which are proper to the transferred
territory shall continue to be allocated and to belong to
the transferred territory.
3. Upon closure of the public accounts relating to
Treasury operations in the transferred territory, the
successor State shall receive the assets of the Treasury
and shall assume responsibility for costs relating thereto
and for budgetary and Treasury deficits. It shall also
assume the liabilities on such terms and in accordance with
such rules as apply to succession to the public debt.
COMMENTARY
A. Public funds
(1) A distinction should be drawn between public funds
belonging to the predecessor State and public funds
which are proper to the transferred territory.
although they form part of the over-all assets of the
State, are situated in the territory or have a relationship
to it by virtue of the State's sovereignty over or activity
in that region. The principle of total transfer of all the
assets of the predecessor State requires that these funds
should pass to the successor State.
State public funds may be liquid or invested; they
include stocks and shares of all kinds. Thus, the acquisition of "all property and possessions" of the German
States in the territories ceded to Poland included also,
according to the Supreme Court of Poland, the transfer
to the successor of a share in the capital of an association.119
(3) Slovakia succeeded to Czechoslovakia's holdings
under an agreement with the Third Reich dated 13 April
1940. All the funds of public establishments, "whether
or not possessing juridical personality",120 became
Slovak, automatically and without payment, provided
that they were situated in the territory of Slovakia.
Hungary, under the agreement of 21 May 1940 with
the Reich, succeeded ipso jure to the property of establishments "controlled" by Czechoslovakia in the territory
taken over by Hungary.
(4) As part of the "transfer without payment of the right
of ownership over State property", the USSR received
public funds situated in the Sub-Carpathian Ukraine,
which, within the boundaries specifed in the Treaty of
Saint-Germain-en-Laye of 10 September 1919, was ceded
by Czechoslovakia in accordance with the Treaty of
29 June 1945.
(5) The Free Territory of Trieste succeeded to all Italy's
movable assets, including public funds, under the 1947
Treaty of Peace.121
2. Funds proper to the transferred territory
(6) Public funds "proper" to the transferred territory
include, first of all, the funds belonging to the territory
as a separate administrative and financial authority.
These funds never belonged to the predecessor State
at any time when it was still exercising its jurisdiction
over the territory; still less can they belong to it after it
loses sovereignty over the territory.
(2) State public funds in the transferred territory must
be understood to mean cash, stocks and shares which,
(7) The utilization and ownership of funds proper to the
transferred territory clearly cannot be affected by the
change of sovereignty. The successor State undoubtedly
has the power to terminate the application of the financial
or other legislation of the predecessor State in the transferred territory and to replace it by its own regulations or
any other regulations it may wish to draw up especially
118
No reference is made here to the cases of Finland, which
already enjoyed monetary autonomy under the former Russian
regime, Bessarabia, which was incorporated by the great Powers
into Romania, or Turkey.
117
See the following treaties: with Estonia of 2 February 1920,
article 12; with Latvia of 11 August 1920, article 16; with Lithuania
of 12 July 1920, article 12; and with Poland of 18 March 1921,
article 19 (League of Nations, Treaty Series, vol. XI, p. 51; vol. II,
p. 212; vol. Ill, p. 122 and vol. VI, p. 123).
118
See B. Nolde, "La monnaie en droit international public",
Recueil des cours,..1929-II (Paris, Hachette, 1930), vol. 27, p. 295.
119
Digest by the United Nations Secretariat of the decision of
the Supreme Court of Poland in Polish State Treasury v. Deutsche
Mittelstandskasse (1929) {Yearbook...l963, vol. II, p. 133, document
A/CN.4/157, para. 337).
i=o "Betriebe, Anstalten und Fonds, nut oder ohne eigene Rechtspersonlichkeit*", in the words of the Agreement of 13 April 1940
between Slovakia and the Reich, quoted by I. Paenson, "Les
consequences financieres de la succession des Etats (1932-1953),
(Paris, Domat-Montchrestien, 1954), p. 104.
121
Treaty of Peace with Italy of 10 February 1947, annex X
(United Nations, Treaty Series, vol. 49, p. 209).
1. State public funds
Succession of States in respect of matters other than treaties
for that territory. But any changes in the status of this
public property would be the result of an act by the
successor State acting in its capacity as a sovereign State,
and would not be justified by the succession of States
itself. This rule would seem to apply whatever the legal
status or geographical location of this property, provided
that the latter is proper to the transferred territory. The
property may be situated in the territory itself, in the
territory of the predecessor State or in that of a third
State.
B.
Treasury
37
2. The successor State shall not refuse to hand over
copies of such items to the predecessor State or to any third
State concerned, upon the request and at the expense of the
latter State, save where they affect the security or sovereignty of the successor State.
COMMENTARY
(1) The Special Rapporteur has nothing to add to the
comment given in his third report. 123
A.
Definition of items affected by the transfer
(8) The public accounts are usually closed as at the date
of transfer, and the transfer takes place ipso facto.
Transfer of the Treasury is always difficult, however,
because of the complexity of Treasury operations. The
assets, composed of public funds, stocks and securities,
budgetary revenues, miscellaneous Treasury income and
the movable and immovable installations used by Treasury
departments, should normally be transferred to the
successor State. In return, the latter assumes the liabilities,
comprising miscellaneous and administrative costs of the
Treasury, the public debt proper and any deficits.
(2) Draft article 14 refers to "archives and public documents of every kind".
There does not exist—at least in French—any generic
term capable of covering the great wealth of written,
photographic or graphic material which the expression
used is intended to suggest. It must be understood as a
comprehensive expression referring to the ownership,
type, character, category and nature of the items, and
the article as finally formulated will have to be accompanied by a detailed commentary to provide the
necessary explanations.
(9) The successor State also assumes, in respect of the
transferred territory, any sums that may be due to the
predecessor State if it has a debt-claim against the local
Treasury or has granted it advances. However, all
these matters must be studied in connexion with the
public debt; the means of liquidating this debt will
be considered by the International Law Commission
at a later stage. The costs which pass to the successor
State, consist, in particular, of the departmental expenses
of the Treasury. Budgetary and Treasury deficits must be
carefully distinguished from the liabilities represented by
the public debt. The latter is represented by various
debt-claims against the Treasury by individuals or bodies
corporate. The budgetary or administrative deficit is not
necessarily of the same nature or the same origin.
(3) The phase "archives and... documents" is used here
in the broadest sense, due regard being had to diplomatic
practice, which is extremely consistent.
It is understood that the words "of every kind" refer
in the first place to the ownership of the archives; it is
immaterial whether they are the property of the State,
of an intermediate authority or of a local public body, the
essential point being that they consist of public documents.
Whatever public law corporations and administrative
divisions exist in a State, their archives are what is meant.
The expression "of every kind" also refers to the type
of archives, whether diplomatic, political or administrative, military, civil or ecclesiastical, historical or geographical, legislative or regulative, judicial, financial or
other.
The character of the items, whether public or secret,
is likewise immaterial.
The question of the nature or category of the archives
relates not only to the fact that they may consist of
written material, whether in manuscript or in print,
or of photographs, graphic material, and so forth, or
that they may be originals or copies, but also to the
substance of which they are made, such as paper, parchment, fabric, leather, etc.
Lastly, the expression used is intended to cover all
varieties of documents. It seemed to the Special Rapporteur unnecessary and pointless to enumerate all these
varieties in a list which would necessarily be incomplete
and would certainly be tedious. Examples of the wordings
used in diplomatic instruments are "archives, registers,
plans, title-deeds and documents of every kind"; 124
(10) The Special Rapporteur has suggested a draft article
which would oblige the successor State to assume responsibility for costs incumbent on the Treasury which is being
transferred by the predecessor State. It should be noted,
however, that there have been cases where responsibility for such costs remained with the ceding State. For
example, article XII of the Treaty of Peace concluded
at Bucharest on 7 May 1918 between the Central Powers
and Romania 1 2 2 stipulates that the State property
(Staatsvermogen) of the ceded Romanian territories shall
pass to the acquiring States free and clear of any compensation or costs. Many more examples of this kind could
easily be found.
Article 14. Archives and public libraries
1. Archives and public documents of every kind relating
directly or belonging to the transferred territory, and public
libraries of that territory, shall, irrespective of where they
are situated, follow the transferred territory.
122
G . F . d e Martens, ed., Nouveau Recueil general de
(Leipzig, Weicher, 1921), 3rd series, vol. X , p . 856.
traites,
123
Yearbook... 1970, vol. I I , p . 152, document A/CN.4/226,
part t w o , paras. 1-6 of the commentary t o article 7.
124
This expression appears in several clauses of the Treaty of
Versailles of 28 J u n e 1919; part III, sect. I, article 38, concerning
G e r m a n y and Belgium; sect. V, article 52, concerning G e r m a n y
a n d France in respect of Alsace-Lorraine, British and Foreign
State Papers, 1919, vol. 112 (op. cit.), p p . 29-30 a n d 42).
38
Yearbook of the International Law Commission, 1973, vol. II
"archives, documents and registers concerning the civil,
military and judicial administration of the ceded territories"; 125 "all title-deeds, plans, cadastral and other
registers and papers"; 186 "any government archives,
records, papers or documents which relate to the cession
or the rights and property of the inhabitants of the islands
ceded"; 127 "all archives having a general historic interest"
as opposed to "archives which are of interest to the local
administration"; 128 "all documents exclusively referring
to the sovereignty relinquished or ceded... the official
archives and records, executive as well as judicial"; 129
documents, deeds and archives... registers of births,
marriages and deaths, land registers, cadastral documents..." 130 and so forth.
B.
The principle of the transfer of archives
to the successor State
(4) The principle of the transfer of archives to the successor State seems to be unquestioned. This is demonstrated by diplomatic practice.
1. Archives of every kind
(5) Archives of every kind are generally handed over to the
successor State immediately or within a very short timelimit. The Franco-German Treaty of 1871 providing for
transfer required the French Government to hand over
to the German Government the archives relating to the
ceded territories. 131 The Additional Agreement to that
Treaty imposed on the two States the obligation to return
to each other all the title-deeds, registers, and so forth,
for municipalities on either side bounded by the new
frontier line between the two countries. 132 After the
First World War, the territories ceded in 1871 having
changed hands again, the archives were dealt with in the
same way and the Treaty of Versailles required the
German Government to hand over without delay to the
French Government the items relating to those terri125
Article 3 of t h e Treaty of Peace between t h e G e r m a n Empire
and France, signed at Frankfurt o n 10 May 1871 ( G . F . de Martens,
ed., Nouveau Recueil general de traites (Gottingen, Dieterich, 1874),
vol. X I X , p . 689).
126
Article 8 of the Additional Agreement t o the Treaty of Peace,
signed at Frankfurt o n 11 December 1871 {ibid., (1875), vol. X X ,
p. 854).
127
Article 1, para. 3 of t h e Convention between t h e United
States of America a n d D e n m a r k providing for t h e Cession of
the Danish West Indies [for reference, see note 81 above].
128
Article V I of t h e Treaty of cession of the territory of t h e
Free T o w n of Chandernagore, between India a n d France, signed
at Paris o n 2 February 1951 (United Nations, Treaty Series, vol. 203,
p p . 158 a n d 160.
129
Article VIII of t h e Treaty of Peace between Spain a n d the
United States of America, signed at Paris o n 10 December 1898
(W. M . Malloy, comp., Treaties, Conventions, International
Acts,
Protocols and Agreements between the United States of America
and other Powers, 1776-1909 (Washington, D.C., U.S. Government
Printing Office, 1910), vol. I I , p . 1693).
130
Article 8 of t h e Frontier Treaty between the Netherlands
and the Federal Republic of Germany, signed at T h e Hague on
8 April 1960 (United Nations, Treaty Series, vol. 508, p . 154).
131
Article 3 of t h e Treaty of Peace signed at Frankfurt o n
10 M a y 1871 (see note 125 above).
132
Article 8 of the Additional Agreement signed o n 11 December
1871 (see note 126 above).
tories. 133 Under the terms of an identically worded
provision of the same Treaty, the German Government
contracted the same obligation towards Belgium.134
2. Archives as an instrument of evidence
(6) In old treaties, archives were handed over to the
successor State primarily as instruments of evidence
and as titles to property.
The writings of past years seem to retain the impress
of this concern for "evidence". "Archives", wrote Fauchille, "and titles to the property acquired by the annexing
State *, which form... part of the public domain, must
also be handed over to it". 136 The Convention whereby
the islands constituting the Danish West Indies were sold
to the United States by Danemark in 1916 provided as
follows: "In this cession shall also be included any
government archives, records, papers or documents
which relate to the cession or the rights and property *
of the inhabitants of the islands ceded...". 136 When Spain,
by the Treaty of Paris of 10 December 1898, ceded to
the United States the property in the public domain of
Cuba, Puerto Rico, the island of Guam and the Philippine archipelago, it was stated that the cession included
"all documents exclusively referring to the sovereignty
relinquished or ceded... and such rights * as the Crown
of Spain and its authorities possess in respect of the
official archives...". 137
However, the treaties in question do not seem to have
implied by this that the ceding State had a right to retain
other categories of archives.
3. Archives as an instrument of administration
(7) The simple idea has prevailed that, when territory
is transferred, concern for handing over as viable a
territory as possible should induce the predecessor State
to relinquish to the successor all such instruments as will
enable breakdowns in administration to be kept to a
minimum and help to ensure that the territory is properly
and easily governable. Hence the custom of leaving
to the territory all the written, graphic and photographic
material needed for the continuance of the proper administrative functioning of the territory.
(8) One effect of this "practice" which is encountered
in some treaties of annexation, especially in Europe, was
that in a few rare cases the predecessor State considered
itself entitled to hand over only archives of an administrative character 138 and to retain those which had a
133
Treaty of Versailles of 28 June 1919, part III, sect. V : AlsaceLorraine, article 52 (see note 124 above).
131
Ibid., part III, sect. I, article 38.
135 p Fauchille, Traite de droit international public, 8th edition
of t h e Manuel de droit international public de H . Bonfils (Paris,
Rousseau, 1922), vol. 1, p . 360. para. 219.
136 Aritcle 1, paragraph 3, of the Convention of 4 August 1916
(see note 81 above).
137
Article VIII of the Treaty of 10 December 1898 (see note 129
above).
138
This expression was understood in the broadest sense:
taxation documents of all kinds, cadastral a n d public property
registers, administrative documents, registers of births, marriages
and deaths, land registers, judicial a n d penitentiary archives, etc.
Succession of States in respect of matters other than treaties
historical interest. However, such instances seem to be
isolated ones.
There have been many examples of transfers of archives
including historical documents. In some cases, indeed,
only this latter category is referred to, not because it
may at one time have been excluded from such transfers
but simply because the tribulations of international life
had not yet drawn attention to it. For instance, France,
as the successor State in Savoy and Nice, was able not
only to obtain from the Sardinian Government the
historical archives which were in the ceded territories
at the time but also, a century later, to obtain from Italy 139
the historical archives at Turin.140 Similary, Yugoslavia
and Czechoslovakia obtained from Hungary, by the
Treaty of Peace of 1947, all historical archives which
had come into being under the Hungarian monarchy
between 1848 and 1919 in those territories. Under the
same Treaty, Yugoslavia was also to receive from Hungary the archives concerning Illyria, which dated from
the eighteenth century.141 It is easy to find many more
examples relating to this point.
Thus, it seems reasonable to lay down as a general
rule for all types of succession the principle of the transfer
of archives of every kind to the successor State.
However, the draft article makes another specification
which requires commentary. It refers to archives "relating. .. or belonging to the territory".
C. The archives-territory link
(9) The suggested text enunciates the principle of the
handing over to the successor State of archives "relating
directly or belonging to the territory". It should be made
clear what is meant by these words.
Obviously, the successor State cannot claim simply
any archives, but only those which belong to the territory. This must be appraised from two standpoints.
(10) First, there are archives which were acquired before
the change of sovereignty by or on behalf of the territory,
against payment of free of cost, and with funds of the
territory or otherwise. From this first standpoint, such
archives "belong" to the territory and must follow its
destiny in the change of sovereignty. In order to do so,
it is not necessary that the archives should relate to the
territory, since it is quite conceivable that the territory
may have acquired, free of cost or against payment,
historical, cultural or other documents concerning other
parts of the world.
(11) Secondly, the organic link between the territory and
the archives relating to it must be taken into account.
However, a difficulty arises when the strength of this
link has to be appraised by category of archives. Writers
agree that, where the documents in question "relate to
the predecessor State as such and refer only incidentally
to the ceded territory", they "remain the property of the
130
This seems especially significant, in that Italy was itself
the successor t o the Sardinian Government.
140
See para. 21 below.
141
Article 11 of the Treaty of Peace with Hungary (United
Nations, Treaty Series, vol. 4 1 , p. 178).
39
ceding State, [but] it is generally accepted that copies
will be supplied to the annexing State at its request".142
The "archives-territory" link was specifically taken into
account in the Rome Agreement of 23 December 1950
between Yugoslavia and Italy concerning archives.143
Attention may be drawn at this point to the decision
of the Franco-Italian Conciliation Commission in which
the Commission held that archives and historical documents, even if they belonged to a municipality whose
territory was divided by the new frontier drawn up in
the Treaty of Peace with Italy, must be assigned in their
entirety to France whenever they related to the territory
ceded.144
(12) After the Franco-German war of 1870, the archives
of Alsace-Lorraine were handed over to the new German
authority in the territory. However, the problem of the
archives of the Strasbourg educational district and of
its schools was amicably settled by means of a special
convention. In this case, however, the criterion of the
"archives-territory" link was applied only in the case of
documents considered to be "of secondary interest to
the German Government".145
(13) Another problem which is touched on by the draft
articles as submitted and which has caused some difficulties
concerns archives which, for one reason or another,
are situated outside the territory affected by the change
of sovereignty.
D.
Archives situated outside the territory
(14) The text suggested by the Special Rapporteur is
of a general nature. According to the wording submitted
for discussion, the successor State has the right to claim
its archives, wherever they may be situated. In fact, the
formulation of such a rule seems to follow inevitably
142
C h . Rousseau, op, cit., p . 136. See also D . P. O'Connell,
State Succession in Municipal Law and International Law (Cambridge,
University Press, 1967), vol. I , Internal Relations, p p . 232-233.
143
Article 6 of the Agreement (United Nations, Treaty Series,
vol. 171, p . 291) provides that Archives which a r e indivisible or
of c o m m o n interest t o both parties "shall b e assigned t o that Party
which, in the Commission's judgement, is m o r e interested in the
possession of t h e documents in question, according to the extent
of the territory or the number of persons, institutions or companies
to which these documents relate,,f I n this case, the other Party shall
receive a copy of such documents, which shall b e handed over t o
it by the Party holding the original".
111
Decision N o . 163 rendered o n 9 October 1953 (United Nations,
Reports of International Arbitral Awards, vol. XIII, (op. cit.),
pp. 503-549). This decision includes t h e following passage:
"Communal property which shall be so apportioned pursuant
to paragraph 18 [of annex X I V to the Treaty of Peace with Italy]
should be deemed n o t t o include, all relevant archives a n d documents
of a n administrative character o r historical value'; such archives
and documents, even if they belong t o a municipality whose territory
is divided by a frontier established under the terms of the Treaty,
pass t o what is termed t h e successor State if they concern the territory
ceded or relate to property transferred (annex X I V , para. 1); if
these conditions are n o t fulfilled, they are n o t liable either to transfer
under paragraph 1 o r t o apportionment under paragraph 18,
but remain the property of the Italian municipality. What is decisive,
in the case of property in a special category of this kind, is the notional
link with other property or with a territory"^ {ibid., pp. 516-517).
145
Convention of 26 April 1872 signed at Strasbourg, (G.
F. de Martens, ed., Nouveau Recueil general de traites (Gottingen,
Dieterich, 1875), vol. XX, p. 875).
Yearbook of the Internationa] Law Commission, 1973, vol. II
from a consideration of practice, some examples of
which will be given below.
A distinction may be drawn between two cases: that
of archives removed from the territory concerned, and
that of archives established outside the territory but
relating directly to it. (There is a third case which will not
be considered in this study, namely that of documents
belonging or relating to the territory which are situated
outside the geographical boundaries of both the predecessor State and the successor State.)
1. Archives which have been removed
(15) Current practice seems to acknowlegde that archives
which have been removed by the predecessor State,
either immediately before the transfer of sovereignty or
even at a much earlier period, should be returned to the
successor State.
There is a striking similarity in the wording of the instruments which terminated the wars of 1870 and 1914.
Article 3 of the Treaty of Peace between France and
Germany signed at Frankfurt on 10 May 1871 provided
as follows: "If any of these items [archives, documents,
registers, etc.] have been removed, they will be restored
by the French Government on the demand of the German
Government".146 This statement of the principle that
archives which have been removed must be returned was
later incorporated, in the same wording, in article 52 of
the Treaty of Versailles, the only difference being that
in that treaty it was Germany that was compelled to
obey the law of which it had heartily approved when it
was the victor.147
(16) Similar considerations prevailed in the relations
between Italy and Yugoslavia. Italy was to restore to
the latter administrative archives relating to the territories ceded to Yugoslavia under the treaties signed in
Rapallo on 12 November 1920 and in Rome on 27 January
1924 which had been removed by Italy between 4 November 1918 and 2 March 3924 as the result of the
Italian occupation, and also deeds, documents, registers
and the like belonging to those territories which had
been removed by the Italian Armistice Mission operating
in Vienna after the First World War.148 The agreement
between Italy and Yugoslavia of 23 December 1950 is
even more specific: article 1 provides for the delivery to
Yugoslavia of all archives "which are in the possession,
or which will come into the possession * of the Italian
State, of local authorities, of public institutions and
publicly-owned companies and associations" and adds
that "should the material referred to not be in Italy, *
the Italian Government shall endeavour to recover and
deliver it to the Yugoslav Government".149
(17) However, some French writers of an earlier era
seemed for a time to accept a contrary rule. Referring to
146
See note 125 above.
See note 124 above.
14 8
Article 12 of the Treaty of Peace with Italy of 10 February 1947
(United Nations, Treaty Series, vol. 49, p. 134). (For the Rapallo
Treaty, see League of Nations, Treaty Series, vol. XVIII, p. 387;
for the Rome Treaty, ibid., vol. XXIV, p. 31.)
148
United Nations, Treaty Series, vol. 171, p . 293.
147
partial annexation, which in those days was the most
common type of State succession, owing to the frequent
changes in the political map of Europe, Despagnet
wrote: "The dismembered State retains... archives relating to the ceded territory which are preserved in a repository situated outside that territory".150 Fauchille did not
go so far as to support this contrary rule, but implied
that distinctions could be drawn: if the archives are
outside the territory affected by the change of sovereignty,
exactly which of them must the dismembered State give
up ? As Fauchille put it: "Should it hand over only those
documents that will provide the annexing Power with
a means of administering the region, or should it also
hand over documents of a purely historical nature?" 151
(18) The fact is that these writers hesitated to support
the generally accepted rule, and even went so far as to
formulate a contrary rule, because they accorded excessive
weight to a court decision which was not only an isolated
instance but bore the stamp of the political circumstances
of the time. This was a judgement rendered by the Court
of Nancy on 16 May 1896, after Germany had annexed
Alsace-Lorraine, ruling that "the French State, which
prior to 1871 had an imprescriptible and inalienable
right of ownership over all these archives, was in no way
divested of that right by the change of nationality imposed
on * a part of its territory".152 It should be noted that
the main purpose in this case was not to deny Germany
(which was not a party to the proceedings) a right to the
archives belonging to the territories under its control
at that time, but to deprive an individual of public
archives which were improperly in his possession.153 Hence
the scope of this isolated decision, which appeared to
leave to France the right to claim from individuals archives
which should or which might fall to Germany, seems
to be somewhat limited.
(19) The Special Rapporteur has nevertheless mentioned
this isolated school of thought because it seemed to
prevail, at least for some time and in some cases, in
French diplomatic practice. If we are to give credence
to one interpretation of the texts at least, this practice
seems to indicate that only administrative archives
should be returned to the territory affected by the change
of sovereignty, while historical documents relating to
that territory which are situated outside or are removed
from it remain the property of the predecessor State.
For example, the Treaty of Zurich of 10 November 1859
between France and Austria provided that archives
containing titles to property and documents concerning
administration and civil justice relating to the territory
ceded by Austria to the Emperor of the French "which
may be in the archives of the Austrian Empire", including
those at Vienna, should be handed over to the commis150
F . Despagnet, op. tit., p. 114, para. 99.
P. Fauchille, op. cit., p. 360, para. 219.
152
Judgement of the Court of Nancy of 16 May 1896, Dufresne
v. the State (M. Dalloz et al, Recueil periodique (Paris, Bureau
de jurisprudence generate, 1896), part 1, pp. 411-412.
15S
T h e decision concerned 16 cartons of archives which a
private individual had deposited with the archivist of Meurthe-etMoseile. They related both to the ceded territories and to territories
which remained French, and this provided a ground for the Court's
decision.
151
Succession of States in respect of matters other than treaties
si oners of the new Government of Lombardy. 154 If there
is justification for interpreting in a very strict and narrow
way the expressions used, which apparently refer only
to items relating to current administration, it may be
concluded that the historical part of the imperial archives
at Vienna relating to the ceded territories was not affected. 155
Article 2 of the Treaty of the same date between France
and Sardinia 1 5 6 refers to the aforementioned provisions
of the Treaty of Zurich, while article 15 of the Treaty
concluded between Austria, France and Sardinia on the
same date reproduces them word for word. 157
Similarly, a Convention between France and Sardinia,
signed on 23 August 1860 pursuant to the Treaty of
Turin of 24 March 1860 confirming the cession of Savoy
and the County of Nice to France by Sardinia, includes
an article 10 which is cast in the same mould as the
articles cited above when it states:
Any archives containing titles to property and any administrative, religious and civil justice documents relating to Savoy
and the administrative district of Nice which may be in the
possession of the Sardinian Government shall be handed over to
the French Government.158
(20) Here again, the Special Rapporteur is somewhat
hesitant to conclude that these texts contradict the existence of a rule permitting the successor State to claim all
archives, including historical archives, relating to the
territory affected by the change of sovereignty which
are situated outside that territory. Would it, after all,
be very rash to interpret the words titles to property in
the formula "titles to property, administrative, religious
and judicial documents", which is used in all these treaties,
as alluding to historical documents (and not only
administrative documents) that prove the ownership of
the territory ? The fact is that in those days, in the Europe
of old, the territory itself was the property of the sovereign, so that all titles tracing the history of the region
concerned and providing evidence regarding its ownership,
were claimed by the successor.159 If this view is correct,
the texts mentioned above, no matter how isolated, do
151
Article 15 of the Treaty of Peace between France and Austria,
signed at Zurich on 10 November 1859 (France, Archives diplomatiques, Recueil de diplomatic et d'histoire (Paris, Amyot, 1861),
vol. I, p. 10; M. de Clercq, Recueil des traites de la France (Paris,
Durand et Pedone-Lauriel, 1880), vol. VII (1856-1859), p. 647).
155 p o r t n j s viewpoint, see G. May, "La saisie des archives
du departement de la Meurthe pendant la guerre de 1870-1871",
Revue generate de droit international public (Paris), vol. XVIII,
1911, p. 35; and Le traite de Francfort (Paris, Berger-Levrault, 1909),
p. 269, note 2.
168
Article 2 of the Treaty between France and Sardinia concerning the cession of Lombardy, signed at Zurich on 10 November 1859
(France, Archives diplomatiques (op. cit.), p . 16; and M. de Clercq,
op. cit., p. 652).
157
Article 15 of the Treaty between Austria, France and Sardinia,
signed at Zurich on 10 November 1859 (France, Archives diplomatiques (op. cit.), pp. 22-23; and M . de Clercq, op. cit., pp. 661662).
158
M. de Clercq, op. cit., vol. VIII (1860-1863), p. 8 3 ; G. F .
de Martens, ed., Nouveau Recueil general de traites (Gottingen,
Dieterich, 1869), vol. XVII, part II, p. 25.
168
As the Special Rapporteur noted above, historical documents
were often claimed by the successor State as instruments of evidence
(see para. 6).
41
not contradict the rule concerning the general transfer
of archives, including historical archives, situated outside
the territory concerned. If the titles to property meant
only titles to public property, they would be covered by
the words "administrative and judicial documents".
Such an interpretation would seem to be supported by
the fact that these treaties usually include a clause which
appears to create an exception to the transfer of all
historical documents, in that private documents relating
to the reigning house, such as marriage contracts, wills,
family mementoes, and so forth, are excluded from the
transfer. 160
(21) What really clinches the argument, however, is the fact
that these few cases which occurred in French practice were
deprived of all significance when France, some 90 years
later, claimed and actually obtained the remainder of
the Sardinian archives, both historical and administrative,
relating to the cession of Savoy and the administrative
district of Nice, which were preserved in the Turin
repository. The agreements of 1860 relating to that
cession were supplemented by the provisions of the
Treaty of Peace with Italy of 10 February 1947, article 7
of which provided that the Italian Government should
hand over to the French Government "all archives,
historical and administrative, prior to 1860, which concern *
the territory ceded to France under the Treaty of March 24
1860, and the Convention of August 23, I860". 161
(22) Consequently, there seems to be ample justification
for accepting as a rule which adequately reflects State
practice the fact that the successor State should receive
all the archives, historical or other, relating to the territory affected by the change of sovereignty, even if those
archives have been removed or are situated outside that
territory.
2. Archives established outside the territory
(23) This section concerns archives consisting of items
and documents which relate to the territory affected by
the change of sovereignty but which were established
and have always been kept outside the territory. Many
treaties include this category among the archives which
must revert to the successor State.
As noted above, 162 France was able to obtain, through
the Treaty of Peace with Italy of 10 February 1947,
archives relating to Savoy and Nice established by the
City of Turin.
Under the agreement signed at Craiova on 7 September
1940 concerning the cession of Southern Dobruja by
Romania to Bulgaria, the latter obtained not only the
160
Article 10 of the Convention of 23 August 1860 between
France and Sardinia (see note 158 above) provided that France
was to return to the Sardinian Government "titles and documents
relating to the royal family", which implies that France had already
taken possession of them together with the other historical archives.
This clause relating to private papers, which is based on the dictates
of courtesy, is also included, for example, in the Treaty of 28 August
1736 between France and Austria concerning the cession of Lorraine,
article 16 of which left to the Duke of Lorraine family papers such
as "marriage contracts, wills and other papers".
161
United Nations, Treaty Series, vol. 49, p. 132.
162
See para. 21 above.
42
Yearbook of the International Law Commission, 1973, vol. II
archives situated in the ceded territory but also certified
true copies of the documents at Bucharest relating to the
region which had become Bulgarian.
(24) What if the archives relating to the territory affected
by the change of sovereignty are situated neither within
the territory itself nor in the predecessor State ?
Article 1 of the Agreement of 23 December 1950
between Italy and Yugoslavia provided that "should the
material referred to not be in Italy, the Italian Government shall endeavour * to recover and deliver it to the
Yugoslav Government".163 In other words, to use terms
dear to experts in French civil law, the former is a rigorous
obligation concerning the result, while the latter is a
simple obligation concerning the means.
E. Problem or the "ownership" of archives
(25) The Special Rapporteur has been careful to specify
in the suggested article that the archives "follow the
transferred territory". In this way, he sought to avoid
having to take a stand regarding the ownership of the
archives. The article merely states that the archives
cannot remain in the patrimony of the predecessor
State. They "follow the territory", that is, they may
become the property of the successor State or of the
transferred territory, depending on circumstances and
the nature of the archives (archives proper to the territory or archives relating to but situated outside the territory). The question will be settled at the discretion of
the successor State, the essential point being that these
items cannot remain in the patrimony of the predecessor
State.
successor State. For example, if the predecessor State
claims the purely technical file for a military base it has
constructed in the territory or the judicial record of one
of its nationals who has left the ceded territory, the
successor State can refuse to hand over copies of either.
Such cases involve elements of discretion and expediency
of which the successor State, like any other State, may
not be deprived.
(28) The successor State is sometimes obliged, by treaty,
to preserve carefully certain archives which may be of
interest to the predecessor State in the future.
The Agreement of 21 October 1954 between France
and India concerning the French Establishments in
India 164 is interesting, because it specifies the period
of time for which the archives are to be preserved,
and states that copies of the archives shall be handed over
to the predecessor State whenever they exist.
In some cases, the successor State has handed over copies
or microfilms not only of administrative archives but
also of historical documents and papers.
G. Time-limits for handing over the archives
(29) The Special Rapporteur considered it unnecessary
to suggest the fixing of a time-limit for the transfer or
return of archives to the successor State, although
diplomatic practice often sanctions the existence of
specific provisions along those lines.165
Furthermore, in most countries public archives are
not only inalienable but may also be claimed at any
time because they are imprescriptible. The Special
Rapporteur has cited various cases in this commentary.
F. Special obligations of the successor State
(26) The proposed draft article puts the successor State
under an essential obligation which is the natural counterpart of the obligation of the predecessor State to transfer
all archives to the successor. Changes of sovereignty
over a territory are often accompanied by population
movements (establishment of new frontier lines which
divide the inhabitants on the basis of a right of choice,
annexations leaving the population a choice of nationality, etc.). Clearly, the population in question cannot be
governed without, at least, administrative archives.
For that reason the second paragraph of the draft article
provides that the successor State shall not refuse to hand
over to the predecessor State, upon its request, copies
of any archives which it may need. Of course, this must
be done at the expense of the requesting State.
It seemed useful to extend this possibility even to third
States, since such States may have nationals returning
from the territory affected by the change of sovereignty,
where they may have constituted a relatively large minority.
(27) Clearly, however, the successor State is only obliged
to hand over copies of administrative documents and
other documents used for current administration.
Furthermore, the handing over of these documents must
not jeopardize the security or sovereignty of the
183
See foot-note 143 above.
H. Transfer and return free of cost
(30) The Special Rapporteur felt that there would be no
point in spelling out something which goes without
saying, namely that archives must be handed over to the
161
For reference, see note 115 above. Article 10 concludes as
follows:
"The records of the French Courts shall be preserved in their
entirety during a period of twenty years and communication
of their contents shall be given to the duly accredited representatives of the French Government whenever they apply for such
communications."
Article 11 reads:
"The records of the Registrars' offices shall be preserved and
copies or extracts of the proceedings shall be issued to the parties
or authorities concerned upon request.
"The third copies of each of the Registrars' offices books of
every commune shall be handed over to the French representative
on the date of the de facto transfer.
"For the year 1954, the records of the Registrars' offices which
concern the Ministere de la France d'outre-mer (Service de l'Etat
civil et cles Archives) shall be forwarded to that department
at the end of the year.
"The personal judicial records of the Courts' Registries shall
be preserved and copies or extracts of these records shall be
issued to the French authorities upon their application."
166
The time-limits vary, according to the agreement in question,
from 3 to 18 months. It has also been stipulated that arrangements
should be made by agreement for the handing over of archives
"so far as is possible, within a period of six months^ following the
entry into force of this Treaty." (Article 8 the Frontier Treaty of
8 April 1960 between the Netherlands and the Federal Republic
of Germany) (see note 130 above).
Succession of States in respect of matters other than treaties
successor State free of cost and free of any tax or duty.
The problem has already been settled in principle in
draft article 9, which states that property necessary for
the exercise of sovereignty over the territory shall devolve
automatically and without compensation. This property
includes archives. Furthermore, this usage is firmly
established in practice.
The Special Rapporteur has nevertheless included the
principle of transfer free of cost implicitly and a contrario
in the draft under consideration, which provides that
copies of archives shall be made at the expense of the
requesting State.
Article 15. Property situated outside
the transferred territory
1. Subject to the application of the rules relating to
recognition, public property proper to the transferred
territory which is situated outside that territory shall pass
within the juridical order of the successor State.
2. The ownership of property belonging to the predecessor State which is situated in a third State shall devolve
to the successor State in the proportion indicated by the
contribution of the transferred territory to the creation of
such property.
COMMENTARY
A.
Introduction
(1) Professor O'Connell writes:
It would seem that in the case of partial succession, property of
the predecessor State not actually located in the territory does not
change its ownership. It has not come within the sovereign jurisdiction of the successor State, and the latter can claim only so much
of it as it can seize or as is ceded to it. In the case of total succession,
however, the predecessor loses its competence to own property.
Such of its assets, therefore, as are situated in foreign countries
must either become property of the successor State or cease to have
any owner. There is no reason to adopt the latter alternative. A
successor State in the case of total succession acquires all the rights
of its predecessor that appertain to sovereign jurisdiction. Such
jurisdiction embraces the capacity to possess assets located in
foreign countries. It is reasonable to conclude, therefore, that the
claims of the successor State to be the owner of the assets of its
predecessor located in other States must be recognized by the
States concerned.166
He also cites a number of writers who admit succession
to property abroad in cases of total succession.167
(2) Professor Rousseau likewise takes the view that "it
is generally agreed that property abroad of a State which
is dismembered or which ceases to exist should also be
transferred to the successor S t a t e s . . . . There is little
difference of opinion among writers on this point". 168
Like O'Connell, however, he cites Professor Hall, who,
along with a very few other writers, maintains that in the
case of land situated outside the territory the successor
State has at the most a right to its value. 169 An obligation
166
D . P . O'Connell, State Succession... (op. cit.), vol. I, p . 207.
Ibid., foot-note 2.
168
Ch. Rousseau, op. cit., p . 143.
189
W. E. Hall, A Treatise on International Law, 8th ed. (Oxford,
Clarendon Press, 1924), p . 115.
167
43
to sell would be imposed on it, since the right of actual
possession might prove more or less impracticable for
some reason arising out of the fact that the property is
now in foreign territory.
(3) In the case of a partial transfer of territory, the point
is not—at least in the view of the Special Rapporteur—
what becomes of "public property of the predecessor
State which is not situated in the ceded territory."
Obviously—subject to a reservation which will be discussed below—such property remains under the ownership of that State and cannot be transferred to the
successor. What is at issue is the exact opposite, namely,
the fate of public property of the ceded territory situated
outside the boundaries of the territory, and in particular
in the territory of the predecessor State.
(4) In the case of partial succession, however, writers do
not always consider—or do not consider clearly—what
happens to property of the ceded territory which is
situated either in the now foreign territory of the predecessor State or in the territory of a third State. Rousseau,
for instance, does not consider this at all because he is
only dealing with the case of total succession or, in other
words, of "a State which is dismembered or which ceases
to exist". 170
(5) As has been noted previously,171 the territory transferred may have, and is necessarily the owner of, property
of its own distinct from that the ownership of which was
in the hands of the predecessor State when the territory
was an integral part of that State, and such property of
the ceded territory may, for one reason or another, 172 be
situated outside its own geographical area, either in the
territory remaining to the predecessor State or in a third
State. These are the two cases which will have to be
considered separately in discussing the problem of
property of the territory itself situated abroad.
(6) There remains the property concerning which a
reservation was expressed.173 This is property situated
abroad which belonged to the predecessor State before
the change of sovereignty. The problem is whether the
successor State would be entitled to claim a share of such
property with the argument that the territory now added
to it may have contributed to the creation of the property
in question when that territory was an integral part of the
predecessor State. This is another case that has to be
considered separately. It is covered by paragraph 2 of the
proposed article.
Let us consider each of these cases:
170
I n a paragraph headed "Exposition of the problem",
Ch. Rousseau excludes even more clearly from the matters he is
considering the problem of property of the ceded territory situated
in the predecessor State: "It is equally important to know where
the property affected by the transfer is situated—whether
it is in
the territory transferred or in the territory of any third State"
(Ch. Rousseau, op. cit., pp. 122-123).
171
See Yearbook...l970, vol. II, pp. 150-151, document A/CN.4/
226, paras. 28 and 29 of the commentary to article 2.
173
Ibid., para. 32 of the commentary.
173
See para. 3 above.
44
Yearbook of the International Law Commission, 1973, vol. II
B. Property proper to the transferred territory
which is situated outside that territory
(7) The Special Rapporteur previously noted the lack of
attention generally given by writers to public property
proper to the transferred territory. 1 ' 4 The reason why
they appear to have neglected this problem, despite its
importance, is, perhaps, that they tacitly believed such
property should not be affected by the fact of transfer of
the territory. While continuing to belong to the latter,
the public property in question follows its political and
juridical destiny.
(8) A resolution of the Institute of International Law
laid down the same principle, stating that local corporate
bodies retained the right of ownership over their property
after territorial changes: "The territorial changes leave
intact those patrimonial rights which were duly acquired
before the change took place." The resolution specified
"These rules also apply to the patrimonial rights of municipalities or other corporate bodies belonging to the State
which is affected by the territorial change *. 175
This plain fact is worth recalling and recording in a
rule of the kind suggested by the Special Rapporteur; for,
although it is so obvious as to be unremarkable in the
case of property situated in the territory itself, it becomes
most important when a decision has to be taken on the
fate of property of the territory itself which is situated
outside its geographical boundaries.
(9) Clarity demands that a distinction should be made
between cases where such property is situated in the
predecessor State and cases where it is in a third State.
1, Property proper to the territory which is situated in the
predecessor State
(10) This is a clear case: it concerns property belonging
as of right to the territory appended to a pre-existing
State but situated in the rest of the territory retained by
the predecessor State. In this case, one can discern two
principles, namely, the principle of non-transferability of
ownership of property of this kind and the principle of
modification of the legal regime governing it.
Non-transferability of ownership of property of this kind
(11) The occurrence of State succession does not transfer
the right of ownership of property of this kind. The
property remains within the patrimony of the ceded
territory. It cannot suddenly, merely because of the
succession, become the property of the predecessor State,
even if it is situated in the territory remaining to that
State after curtailment. Since the predecessor State did
not own this property before succession, it cannot, as a
result of the succession, create new rights for itself. Nor
does property of this kind pass to the successor State
"* See Yearbook...l970, vol. II, pp. 150-151, document A/CN.4/
226, paras. 28 et seq. of the commentary to article 2, and pp. 156
et seq., paras. 21 et seq. of the commentary to article 7.
176
Paragraphs 3 and 4 of resolution II of the Institute of International Law adopted at its forty-fifth session, held at Siena from
17 to 26 April J952 {Annuaire de I'Institut de droit international,
1952, II (Basle), vol. 44, pp. 475-476).
merely because of the succession. There appears to be
no valid reason for stripping the ceded territory of its
own property.
Modification of the legal regime governing property of
this kind
(12) If property of this kind should never pass to the
predecessor State—and it generally does not pass to the
successor State except as otherwise provided—it can
only remain the property of the ceded territory. Although
the right of ownership is thus non-transferable, there is a
change in the rules governing the exercise and enjoyment
of this right. The change is twofold:
Firstly, the predecessor State, in which the property is
situated, will now treat it as foreign public property, with
all that this implies as regards restrictive or protective
legislation. This right of ownership, which is otherwise
unchanged as regards the entity in which it is vested, is
thus exercised in a new setting and it is the laws, if any,
relating to foreign property that will now be applied to
it by the predecessor State.
Secondly, the ceded territory has passed within a new
juridical order, that of the successor State. As a result,
property which belongs to that territory and which
naturally follows the destiny of its owner can only be
placed under the protection of this new juridical order.
While it is true that the successor State is not given the
ownership of this property, it nevertheless becomes the
subject of international law responsible for the property.
As the property belongs to a territory which belongs to
that State, it falls within its juridical order. For example,
it is the successor State that will ensure the international
protection of the property against the predecessor State
in which it is situated or against any third State.
It is this idea which, in a tentative and probably not
entirely suitable formulation, the Special Rapporteur has
tried to express in the suggested rule stating that "public
property proper to the transferred territory which is
situated outside that territory shall pass within the
juridical order of the successor State *"'.
2. Property proper to the transferred territory which is
situated in a third State
(13) Property of this kind unquestionably passes under
the protection of the juridical order of the successor State.
C. Property of the predecessor State which is situated
outside the territory retained by that State
(14) Property of the predecessor State falls into four
categories, according to where it is situated:
(a) Being owned by the predecessor State, it may be in
the part of the territory retained by that State, in which
case it of course remains, in all circumstances, under its
sole ownership;
(b) It may be situated in the part of the territory ceded
to the successor State. In this case, the principle of the
transfer of State property situated in the territory affected
by the change of sovereignty, which has already been
Succession of States in respect of matters other than treaties
discussed, is fully applicable and the property concerned
is acquired by the successor State;
(c) There remain the two cases in which the property
of the predecessor State is either in the territory of the
successor State or in that of a third State. It would certainly
appear at first sight that only the status quo would be
fair and acceptable. However, there may have been
instances where claims have been advanced by the
successor State.
(15) It is with these cases in mind that the Special
Rapporteur has suggested, not without considerable
misgivings, a paragraph 2 under which public property
of the predecessor State, in so far as it is situated outside
the transferred territory and outside the territory of the
predecessor State, will be divided between the successor
and the predecessor on the basis of the past contribution
of the transferred territory to the creation of such
property. The Commission will say whether it is both
correct and useful to establish a provision of the kind
suggested.
SECTION 2. NEWLY INDEPENDENT STATES
Article 16. Currency and the privilege of issue
1. The privilege of issue shall belong to the new sovereign
throughout the newly independent territory.
2. Currency, gold and foreign exchange reserves, and,
in general, monetary tokens of all kinds which are proper
to the territory concerned shall pass to the successor State.
3. In consideration of the foregoing, the successor State
shall assume responsibility for the exchange of the former
monetary instruments, with all the legal consequences
which this substitution of currency entails.
COMMENTARY
(1) The comments that were made earlier 176 on the
subject of the privilege of issue, as an attribute of sovereignty, naturally apply also in the case of accession to
independence. There have been cases where agreements
between the former metropolitan country and the excolony allowed the predecessor State to continue temporarily to exercise the privilege of issue in the territory
which had become independent.
It is nevertheless a firm principle that the privilege of
issue belongs to the successor State, the existence of such
agreements being a manifestation of the power of free
disposal which the newly independent State has in this
field pending transfer.
(2) The agreements concluded by the French-speaking
African States and France are instructive in this connexion. The newly independent State is recognized as
sole possessor of the privilege of issue, which it nevertheless entrusts to a French or Community body.
Article 1 of the quadripartite Agreement on monetary
co-operation between France and the States of Equatorial
Africa reads as follows:
The French Republic recognizes that the accession to international
sovereignty * of the States of Equatorial Africa confers on them the
right to introduce a national currency and to establish their own bank
of issue *.
Once the possession of the right has thus been recognized, the exercise of it is temporarily left to a Community
body supervised by the French Republic. Article 2 of the
Agreement is accordingly worded as follows:
The States of Equatorial Africa confirm their adherence to the
Monetary Union of which they are members within the franc area.
The franc CFA issued by the Banque centrale des Etats d'Afrique
equatoriale . . . shall remain the lawful currency being legal tender
throughout their territories.177
(3) Under this Franco-African system, monetary policy
was in principle decided multilaterally within a franc area
comprising, in addition to the Banque de France, four
banks of issue closely linked to the French Treasury.
The West African Monetary Union (UMOA), composed
of the Ivory Coast, Senegal, Upper Volta, Niger, Dahomey
and Togo,178 has a common currency, the franc CFA
(Communaute financiere africaine), issued by the Banque
Centrale des Etats de l'Afrique de l'Ouest (BCEAO),
whose head office is in Paris. The Banque Centrale des
Etats de l'Afrique equatoriale et du Cameroun, which
following the recent agreements concluded at Brazzaville
in December 1972 and at Fort-Lamy in February 1973
has become the Banque d'Etat de l'Afrique centrale
(BEAC), comprises Cameroon, the People's Republic
of the Congo, Gabon, Chad and the Central African
Republic and also has its head office in Paris. Mali and
the Malagasy Republic each have their own banks of
issue.
(4) The peculiarity of these four banks (which issue a franc
CFA that has no "international personality" and has an
absolutely fixed rate of exchange with the French franc),
177
Agreement o n Co-operation in Economic a n d Financial
Matters between t h e French Republic a n d the Central African
Republic, the Republic of the Congo a n d the Republic of Chad
(France, Journal officiel de la Republique francaise, Lois et decrets
(Paris), 24 November 1960,92nd year, No. 273, p . 10461, and Decree
of publication N o . 60-1230, ibid., p. 10459).
The agreement on Co-operation in Monetary, Economic and
Financial Matters between the French Republic and the Malagasy
Republic {ibid., 20 July 1960, N o . 167, p. 6612) includes an article 1
recognising Madagascar's right to introduce its own national
currency and to establish its own national bank of issue, and an
article 2 entrusting the function of issuing currency to a Malagasy
public establishment and creating a currency linked to the French
franc.
See also other agreements entered into by France on monetary,
economic and financial matters, including in particular the Treaty
of 24 April 1961 with the Ivory Coast {ibid., 6 February 1962,
94th year, No. 30, p. 1261), especially article 19; the Agreements
of 22 June 1960 with the Federation of Mali (ibid., 20 July I960
(op. cit.), p. 6629); the "Bamako" Agreement of 9 March 1962
with Mali, after the dissolution of the Federation of Mali (Ibid.,
10 July 1964, 96th year, No. 160, p. 6131); the Agreements of
24 April 1961 with Niger (ibid., 6 February 1962 (op. cit.), p. 1292;
the Agreement of 13 November 1960 with Cameroon (ibid..
9 August 1961, 93rd year, N o . 186, p. 7429); the Agreements of
17 August 1960 with Gabon (ibid., 24 November 1960 (op. cit.),
p. 10481); the Agreement of 10 July 1963 with Togo (ibid.,
10 June 1964,96th year, N o . 134, p. 5000); the Treaty of 19 June 1961
with Mauritania (ibid., 6 February 1962 (op. cit.), p. 1324).
178
Mauritania, which was the seventh member, withdrew as
from the end of December 1972 and established its own bank of
issue.
11V111
176
See above, paras. 5 et seq. of the commentary to article 12.
45
46
Yearbook of the International Law Commission, 1973, vol. II
is that each of them has an "operations account" opened in
its name with the French Treasury in Paris. This account
is credited with all earnings by the French-speaking
African State or group of States from their trade with
other countries and debited with the amounts of their
expenditure abroad.
In return, the French Treasury gives these four banks of
issue its guarantee—in principle unlimited—by undertaking to supply them with francs and foreign exchange
to balance their operations accounts.179
(5) The fact that these monetary agreements are at present
being revised testifies both to their eminently evolutive
character and to the newly independent State's right of
free disposal with respect to its privilege of issue, the
exercise of which it can at any time reclaim and the
possession of which, indeed, it never legally lost.
(6) When the independence of the various Latin American
colonies was proclaimed at the beginning of the nineteenth
century, the Spanish currency was generally not withdrawn. The various republics confined themselves to
substituting the seal, arms or inscriptions of the new
State for the image and name of His Most Catholic
Majesty on the coins in circulation,180 or to giving some
other name to the Spanish peso without changing its
value or the structure of the currency.181
(7) In the proceedings of the Hague Round-Table Conference, there was one instance of a restriction on the
exercise of the privilege of issue. The new Indonesian
Republic was required, as long as it had liabilities towards
the Netherlands, to consult the Netherlands before
establishing a new institution of issue and a new currency.
However, this restriction did not last for long.
(8) Ethiopia and Libya apparently did not succeed to
the monetary reserves, judging by the more clearly
established fact that they did not succeed to the obligations derived from the issue of Italian currency. However,
both countries made use of their right of issue to carry
out monetary reforms when they became independent.
(9) In pursuance of the decisions taken at the Conference
on Indochina held at Pau from 30 June to 27 November
1950, a bank for Indochina was to begin operations
on 1 January 1952 with authority to issue piastre notes,
178
It is no secret, however, that many African States requested
revision of these monetary agreements because they considered
the guarantee offered by the French Treasury to be illusory. In
their view, the French Treasury operates less like a generous guardian
than like a prudent banker who gives an unlimited guarantee
only to a customer having a credit balance. In other words, the
guarantee would not operate. It is a fact that the agreements which
were concluded lay down very strict rules to guard against imbalances
between receipts and expenditure in the operations accounts that
were opened with the French Treasury. It is a further fact that
those accounts are in surplus, thus draining off to France the African
resources amassed by the local banks.
180
In Chile the new inscriptions on the Spanish peso in 1817
were: "Liberty, Union and Strength" and "Independent Chile";
in Argentina: "Union and Liberty" and "Provinces of Rio de la
Plata". In Peru and Mexico the new emblem, arms or seal were
stamped on the coins.
181
"Boliviano", "bolivar" and "sucre" were the new names
given to the Spanish peso in Bolivia, Venezuela and Ecuador,
respectively.
which would be individualized for each of the three
Associated States of Indochina but would circulate as
legal tender throughout those States.
(10) Paragraph 2 of the proposed article covers the
problems of monetary tokens "proper" to the territory
transferred.
This paragraph, like paragraph 1 of the article under
discussion, may be regarded as simply a descriptive
provision having nothing, strictly speaking, to do with
State succession. Many dependent territories had their
own institution of issue and their own currency. The
privilege of issue in the territory was exercised by a
private bank, a government body of the metropolitain
country or a public body of the territory. So far as assets
are concerned, the monetary tokens in circulation may
have been a mixture of the issues of two or more institutions of the kinds mentioned above. Paragraph 2 of the
proposed article simply makes it clear that whatever
portion of those monetary tokens was owned by the
territory that is being transferred should normally revert
to it, without there being any problem of State succession,
or, if one prefers, should pass under the control of the
successor State.
(11) In the case of India, various agreements were concluded between the United Kingdom and its two former
Dominions and also between the two Dominions. The
first point to be noted is that India had an entirely
separate monetary system before the colonial Power
withdrew and the country was partitioned. The only
problem which would arise in the normal course of
events was the apportionment of reserves and currency
between India and Pakistan. As soon after 30 September
1948 as practicable, the Reserve Bank of India was to
transfer to Pakistan assets equal to the volume of money
actually in circulation at that time in the latter State.
Before that date, Indian rupee notes issued by the Reserve
Bank of India would still be legal tender in Pakistan.
The apportionment of the cash balances of the Reserve
Bank of India, which amounted to about 400 crores
of rupees, was determined by the agreements of December
1947 between India and Pakistan 182 and by the Pakistan
(Monetary System and Reserve Bank) Order, 1947.
Pakistan received 75 crores of rupees and also obtained
part of the Bank's sterling assets. The ratio of the note
circulation in Pakistan and in India to the total volume
of money in circulation had been taken into account
for the purpose of this apportionment. Pakistan's actual
share came to 17.5 per cent.
(12) India succeeded to the sterling assets of the Reserve
Bank of India, estimated at £ 1,160 millions.183 However,
these assets could not be utilized freely, but only progressively. A sum of £65 m illion was credited to a free account and
the remainder—i.e., the greater part of the assets—was
placed in a blocked account. Certain sums had to be
transferred to the United Kingdom by India as working
182
See Keesing's Contemporary Archives,
24-31 January, p. 9066.
183
United Kingdom, Financial Agreement
ment of the United Kingdom and the Government
(London, H. M. Stationery Office, 14 August
1946-1948, vol. VI,
between the Governof India, Cmnd. 7195
1947).
Succession of States in respect of matters other than treaties
balances and were credited to an account opened by the
Bank of England in the name of Pakistan. The conditions
governing the operation of that account were specified
in 1948 and 1949 in various agreements concluded by the
United Kingdom with India and Pakistan.184
Article 17. Public funds and Treasury
1. Public funds, liquid or invested, which are proper to
the territory that has become independent shall remain the
property of that territory, irrespective of where they are
situated.
2. Public funds of the predecessor State, liquid or
invested, which are situated in the territory that has become
independent shall pass into the patrimony of that territory.
3. The rights of the Treasury of the territory that has
become independent shall not be affected by the change of
sovereignty, vis-a-vis the predecessor State or otherwise.
4. The obligations of the Treasury of the territory that
has become independent shall be assumed by that territory
on such terms and in accordance with such rules as apply
to succession to the public debt.
COMMENTARY
A. Public funds
1. Funds proper to the territory
(1) Paragraph 1 does not appear to raise any complicated
question, at least so far as the statement of the principle
is concerned, although the actual application of the
principle may indeed pose problems, especially when it
comes to a practical definition of "public funds which are
proper to the territory".
(2) As a corporation under internal public law, the territory will usually have had, prior to independence, a
system of public finances consisting of machinery, institutions and a Treasury distinct from those of the colonial
Power. Public funds which accordingly belonged to the
territory prior to independence, being the product of
duties, taxes and fees of all kinds, debt-claims and the
like, connected with activities in the territory, can only
remain among the financial assets of the territory once
it has become independent. Logically, their status cannot
be affected in any way by the fact of their being in the
territory itself or in the territory of the predecessor State
or of any other third State, since it is well established
that they belonged to the territory that has become
independent.
2. State funds
(3) State funds which belong to the colonial Power but
are in the territory should, whether liquid or invested,
pass into the patrimony of the successor State pursuant
to the general principle of the transfer of public property
of the State.
184
For details, see I. Paenson, op. cit., passim and in particular
pp. 65-66 and 84.
47
(4) It appears, however, that the public funds of the
British Mandatory Government in Palestine were withdrawn by the United Kingdom. Yet this example does
not invalidate the general principle inasmuch as a Mandate
which was conceived as an international public service
assumed by a State on behalf of the international community, in no way deprives the Mandatory Power of the
authority to withdraw its own property when such
property is clearly separable and detachable from that
of the mandated country.
B. Treasury
(5) Treasury relations are very complicated. Reduced
to simple terms, they comprise two aspects. In the first
place, there is no reason why the rights of the Treasury of
the territory that has become independent should,
paradoxically, cease to exist simply because of the
territory's accession to independence. In the second
place, the obligations, whether or not corresponding,
previously incurred by the Treasury of the territory to
private persons or to the predecessor State or any other
State are assumed, in the absence of special treaty
provisions, on such terms and in accordance with such
rules as apply to succession to the public debt. It does not
seem possible to say more than this on the subject without
running the risk of foundering on the technical complexity
of these problems.
(6) On termination of the French Mandate, Syria and
Lebanon succeeded jointly to the "common interests"
assets, including "common interests" Treasury funds and
the profits derived by the two States from various concessions. The two countries succeeded to the assets of the
Banque de Syrie et du Liban. However, most of these
assets were blocked and were released only progressively
over a period extending to 1958.185
(7) In the case of the advances which the United Kingdom
had made in the past towards Burma's budgetary deficits,
the United Kingdom waived repayment of £15 million
and allowed Burma a period of 20 years to repay the
remainder, free of interest, starting on 1 April 1952.
The former colonial Power also waived repayment of
the costs it had incurred for the civil administration 186
of
Burma after 1945 during the period of reconstruction.
Article 18. Archives and public libraries
1. Archives and public documents of every kind relating
directly or belonging to the territory that has become independent, and public libraries of that territory, shall,
irrespective of where they are situated, be transferred to
the newly independent State.
186
For Syria, see the Convention on Winding-up Operations,
the Convention on Settlement of Debt-claims and the Payments
Agreement, all three dated 7 February 1949 (France, Journal
officiel de la Republique frangaise, Lois et decrets, Paris, 10 March
1950, 82nd year, No. 60, pp. 2697-2700); For Lebanon, see the
Franco-Lebanese monetary and financial agreement of 24 January
1948 (ibid., 14 and 15 March 1949, 81st year, No. 64, pp. 2651-2654;
also in United Nations, Treaty Series, vol. 173, p. 99).
186
The United Kingdom also reimbursed Burma for the cost
of supplies to the British Army incurred by that territory during
the 1942 campaign and for certain costs relating to demobilization.
48
Yearbook of the International Law Commission, 1973, vol. II
2. The newly independent State shall not refuse to hand
over copies of such items to the predecessor State or to any
third State concerned, upon the request and at the expense
of the latter State, save where they affect the security or
sovereignty of the newly independent State.
COMMENTARY
(1) The Special Rapporteur will not revert to the question
of the importance of archives 187 or to the definition of the
items affected by the transfer. These are archives and
public documents of every kind,18S i.e. items irrespective
of (a) their ownership (by the State, by an intermediate
authority, by a public body, etc.), (b) their type (diplomatic, political, administrative, military, economic,
judicial, historical, geographical, legislative, regulative,
ecclesiastical, etc.), (c) their character (public or secret
archives), (d) their nature (manuscript or printed, graphic
material or photographs), (e) their substance (paper,
parchment, fabric, leather, etc.), (/) their variety (plans,
registers, scrolls, title-deeds, documents, etc.). It is also
known that the term "archives of every kind" covers
items which are instruments of evidence as well as those
which are instruments of administration. 189
(2) Article 33 of the Agreement of 21 October 1954
between France and India, 190 concerning the French
Establishments in India, states that
The French Government shall keep in their custody the records
having an historical interest, they shall leave in the hands of the
Indian Government the records required for the administration of
the territory.
Although this case of decolonization does not come
within the scope of the present study on "newly independent States", the Special Rapporteur has thought fit
to refer to it in order to draw attention to the fact that
the rare example of this kind limiting the transfer of
archives to a particular category of archives express the
freedom of States on the Treaty plane but in no way
reflect a rule or custom, 191 inasmuch as nothing can
dispense the predecessor State from the obligation of
handing over all archives which have a link with the
territory.
A. The archives-territory link
(3) Obviously, the successor State cannot claim simply
any archives but only those "belonging to the territory". 192
The Special Rapporteur refers readers to a previous
commentary 193 for an elucidation of this expression.
This fact of the archives belonging to the territory must
187
See Yearbook...1970, vol. II, p. 152, document A/CN.4/226,
part two, paras. 1-6 of the commentary to article 7.
188
See above, para. 2 et seq., of the commentary to article 14.
189
Ibid., para. 6 et seq., of the commentary.
190
F o r reference, see note 115.
191
See Yearbook...l970, vol. II, document A/CN.4/226, part two,
paras. 13-15 of the commentary to article 7.
192
Article I, paragraph 2 (a) of General Assembly resolution 388
(V) entitled "Economic and financial provisions relating to Libya",
stipulates that "the relevant archives and documents of an administrative character or technical value concerning Libya or relating
to property* the transfer of which is provided for by the present
resolution" shall be transferred immediately.
193
See above, paras. 9-12 of the commentary to article 14.
be appraised from two standpoints. First, there are
archives acquired by or on behalf of the territory and,
secondly, there are items concerning the territory because
of the organic link wich attaches them to it.
B. Archives situated outside the territory
that has become independent
1. Archives which have been removed
(4) There seems to be ample justification for accepting
as a rule the fact that the successor State should receive
all the archives, historical or other, relating to the
territory affected by the change of sovereignty, even if
those archives have been removed by the predecessor
State. The application of such a principle would considerably help new States to acquire greater mastery of
their internal and external problems. A better knowledge
of these problems can be gained only through the possession of retired or current archives, which should be
left with or returned to the States concerned. For obvious
reasons, however, the former colonial Power cannot be
expected to agree to hand over all archives, especially
those linked to its imperium over the territory concerned.
Many considerations relating to politics and expediency
prevent such Powers from leaving to the new sovereign
revealing documents on colonial administration. For
that reason, the principle of the transfer of such archives—
which the former metropolitan country is careful to
remove before independence—is rarely applied in
practice.
At this point a distinction must be drawn between the
various categories of archives which the former metropolitan country is tempted to evacuate before the termination of its sovereignty. A distinction should be made
between (a) historical archives proper, which antedate
the beginning of colonization of the territory, (Jb) archives
of the colonial period, relating to the imperium and
dominium of the metropolitan country and to its colonial
policy generally in the territory, and (c) purely administrative and technical archives relating to the current
administration of the territory.
(5) The information collected by the Special Rapporteur,
which although voluminous is not sufficiently complete
to permit the formation of a definitive judgement, seems
to show that the problem of returning the archives
removed by the former metropolitan country to the new
independent State has not yet been solved satisfactorily.
It may even be said that, no matter how sound and wellfounded the principle of the transfer of archives may be,
it would be unreasonable to expect the immediate return
of all the archives referred to under {b) above. Indeed,
in the interest of good relations between the predecessor
State and the successor State, it may be unrealistic and
undesirable for the new independent State to claim them
and to start a dispute over them which is bound to be
difficult.
(6) However, in the case of the archives mentioned
under (a) above, which may have been removed by the
former metropolitan country, the principle of transfer
should be firmly and immediately applied. These archives
Succession of States in respect of matters other than treaties
antedate colonization, they are the product of the land
and spring from its soil; they are bound up with the land
where they came into existence and they contain its
history and its cultural heritage.
(7) Similarly, the removal of administrative documents
of all kinds mentioned under (c) above, which may have
occurred in some cases, is bound to be a source of
considerable inconvenience, confusion and maladministration for the young independent State, which already
faces considerable difficulties owing to its inexperience
and lack of trained personnel. Except in the rare cases
where independence resulted from a sharp and sudden
rupture of the links between the metropolitan country
and the territory, which, compounded by misunderstandings or rancour, led to the malicious destruction or
removal of administrative documents, the removal of
these archives, which are instruments of administration,
has reflected primarily the metropolitan country's desire
to retain documents and titles which might concern the
minority composed of its own nationals. However,
reproduction techniques are now so highly developed that
it would be unreasonable and unjustified to retain such
administrative or technical archives, as this would entail
depriving a majority in order to meet the needs of a
minority, which could, moreover, be satisfied in another
way.
(8) Generally speaking, it is to be hoped that the formulation of the rule of transfer will lead to better relations
between States and open the way for appropriate cooperation in the field of archives. This would enable the
new sovereignty to recover the items which express its
history, its traditions, its heritage and its national genius
and provide it with a means of improving the daily life
of its inhabitants, and would also enable the former
sovereignty to ease its own difficulties, intangible and
material, which inevitably accompany its withdrawal
from the territory.
(9) Professor Rousseau, discussing a case of decolonization, writes:
The problem is posed at present in the relations between France
and Cambodia, but so far no final settlement seems to have been
reached. The logical solution would be the return of all items
concerning the history of Cambodia during the period in which
France assumed international responsibility for its affairs (18631953).194
In the case of Algeria, historical archives concerning
the pre-colonial period, which had been carefully catalogued by the colonial administration, were removed by
the latter immediately before independence. 195 The
negotiations between the two Governments have so far
resulted in the return of some of the documents from the
Turkish collection and microfilms of part of the Spanish
collection. 156
194
Ch. Rousseau, op. cit., p. 136.
These archives are commonly known as the Arab collection,
the Turkish collection and the Spanish collection.
188
Exchange of notes between Algeria and France, which took
place at Algiers on 23 December 1966.
193
2.
49
Archives established outside the territory
(10) The Special Rapporteur has not found any specific
information concerning this field and this type of succession. However, the problem of the ownership of the
India Office library furnishes an example of an "unresolved" case. It will be recalled that in 1801 the British
East India Company established a library which now
contains about 280,000 volumes and some 20,000 unpublished manuscripts, constituting the finest treasury of
Hinduism in the world. In 1858 this library was transferred to the India Office in Whitehall. After the partition
in 1948, the Commonwealth Relations Office assumed
responsibility for the library. On 16 May 1955 the two
successor States, India and Pakistan, asked the United
Kingdom Government to allow them to divide the
library on the basis of the percentages (82.5 per cent for
India, 17.5 per cent for Pakistan) used in 1947 for deciding
all assets between the two Dominions.
The problem would assuredly be quite difficult to solve,
since the Government of India Act of 1935 allocated the
contents of the Library to the Crown. Since the Commonwealth Relations Office could not find a solution, the
case was referred in June 1961 to arbitration by three
Commonwealth jurists, who were members of the
Judicial Committee of the Privy Council.
C. Special obligations
of the newly independent State
(11) The draft article puts the successor State under an
essential obligation which is the natural counterpart of
the obligation of the predecessor State to transfer all
archives to the successor. Decolonization has sometimes
been accompanied by repatriation to the former metropolitan country of populations which cannot be governed
without archives. For that reason paragraph 2 of the
article provides that the successor State shall not refuse
to hand over to the predecessor State, upon its request,
copies of any archives which it may need.
In some cases, the newly independent State has handed
over copies or microfilms not only of administrative
archives but also of historical documents and papers. 197
Article 19. Property situated outside
the territory of the newly independent State
1. Public property proper to the territory that has become
independent which is situated outside that territory shall
remain its property upon its accession to independence.
2. Public property belonging to the predecessor State
which is situated in a third State shall be apportioned
between the predecessor State and the newly independent
State proportionately to the latter's contribution to the
creation of such property.
197
After France had restored to Algeria certain items from the
"Turkish collection", which forms part of the historical archives
removed immediately before independence (see para. 9 and note 195
above), Algeria offered France microfilms of some documents
from that collection following their return. It had previously allowed
all the registers of births, marriages and deaths held by Algerian
record offices to be microfilmed.
50
Yearbook of the International Law Commission, 1973, vol. II
(2) However, unlike the case of the partial transfer of a
territory from one State to another pre-existing State,
which was examined above, in the case of decolonization
the transferred territory and the territory of the successor
State are geographically coextensive, so that the property
of one is also the property of the other. In this type of
succession, the successor State itself enjoys the ownership of this property and does not simply receive the
property into the new juridical order it has created.
valued at $750 million. The independent Congo does not
appear to have recovered all these shares.198
On the eve of independence, during the BelgianCongolese Conference at Brussels in May 1960, the
Congolese negotiators had requested that the liquid
assets, securities and property rights of the Special
Committee for Katanga and of the Union miniere should
be divided in proportion to the assets of the Congo and
its provinces, on the one hand, and of private interests,
on the other hand, so that the new State could succeed
to the sizable portfolio of stocks and shares situated
outside its territory. Numerous complications ensued,
in the course of which the Belgian Government, without
the knowledge of the prospective Congolese Government,
pronounced the premature dissolution of the Special
Committee for Katanga so that its assets could be shared
out and the capital of the Union miniere could be reapportioned. This was all designed to ensure that the Congo
no longer had a majority holding in these entities.199
This first dissolution of the Special Committee, which
was the principal shareholder in the Union and in which
the State held a two thirds majority while the rest belonged
to the Compagnie du Katanga, was decided on 24 June
1960 under an agreement signed by the representatives
of the Belgian Congo and of the Compagnie du Katanga.200 The agreement was approved by Decree of
the King of the Belgians on 27 June I960.201
(3) The usual distinction should be drawn between
property of the territory which is situated in the former
metropolitan country and property which is situated in
the territory of a third State.
As a reaction against this first dissolution by the Belgian
authorities, the constitutional authorities of the independent Congo pronounced a second dissolution of the
Special Committee by Decree of 29 November 1964.
COMMENTARY
A. Property proper to the territory
that has become independent
(1) The territory acceding to independence may leave,
particularly in the former metropolitan country, property
bought with its own funds. It may also own property
in other countries. State succession cannot have the
paradoxical effect of conferring on the predecessor State
a right of ownership which it did not possess over such
property prior to the territory's independence. The fact
that the property in question is situated outside the newly
independent territory cannot, on its own, constitute
grounds for making an exception to that obvious principle.
Ownership of such property cannot depend on geographical location.
(6) Eventually, the Belgian-Congolese agreements of
1. Property which is situated in the former metropolitan 6 February 1965 202 put an end to these unilateral measures
country
by both parties. These agreements are partly concerned
with the assets situated in Belgium—in other words,
(4) The occurrence of State succession does not transfer public property situated outside the territory involved
the right of ownership of public property of this kind and in the change of sovereignty. In exchange for the cession
the successor State—in other words, the formerly to the Congo of the net assets administered by the Special
dependent territory—retains ownership of such property. Committee in that territory, the Congolese party recogniDiplomatic practice, however, is not consistent and zed the devolution to the Compagnie du Katanga of
the Special Rapporteur found it difficult to characterize. the net assets situated in Belgium. Various compensations
While the principle of the transfer of such property to the and mutual retrocessions took place in order to unravel
newly independent State is not called in question, it often the tangled skein of respective rights. On 8 February 1965,
proves difficult to put into practice because the former in an official ceremony at Brussels, Mr. Tshombe" accepted
metropolitan country disputes not the principle but the the first part of the portfolio of the Congo on behalf of
fact of the right of ownership, because the territory which his Government.
has seceded finds it difficult to know exactly how much
This was not, however, the end of the affair. After
property, and of what kind, it could rightfully claim, or General Mobutu had taken office, and after various
because of other political or non-political considerations. upheavals, the Union miniere du Haut-Katanga was
For example, various colonial offices of an administrative nationalized on 23 December 1966 because it had refused
or industrial and commercial nature, rest and recreation to transfer its headquarters from Brussels to Kinshasa,
facilities for officials of the colonial territory and their believing that the transfer would have the effect of placing
families, administrative premises or residences may have under Congolese jurisdiction all the assets of the company
been constructed or purchased in the metropolitan
country by the detached territory, using its own funds or
198
D . P. O'Connell, State Succession (op. cit.), vol. I, p. 228.
those of public agencies under its jurisdiction (e.g.,
199
F o r an account of all these problems, see R. Kovar, " L a
family allowance or social security funds).
'congolisation' de l'Union minifere du Haut-Katanga", Annuaire
(5) The former colony of the Congo had in its patrimony
a portfolio of Belgian shares situated in Belgium which
in 1959, according to Professor D. P. O'Connell, were
francais de droit international, 1967 (Paris) vol. XIII, pp. 742-781.
200
Moniteur congolais, 19 September 1960, N o . 38, p. 2053.
201
Ibid.
202
United Nations, Treaty Series, vol. 540, p. 227.
Succession of States in respect of matters other than treaties
situated outside the Congo. A compromise was finally
reached on 15 February 1967.
(7) On the occasion of the disannexation of Ethiopia,203
articles 37 and 75 of the Treaty of Peace of 10 February
1947 204 required Italy to restore objects of historical
value to Ethiopia, and the Agreement of 5 March 1956 205
between the two countries contained various annexes
listing the objects concerned. Annex C allowed the return
to Ethiopia of the large Aksum obelisk, which Italy
was obliged to dismount and remove from a square in
Rome and transport to Naples at its expense for shipment
to Ethiopia.
(8) Some treaty provisions are restrictive, authorizing
succession to public property only if it is situated in the
territory, and not if it is located elsewhere.
This was so, for example, in the case of the resolutions
of the United Nations General Assembly on economic
and financial provisions relating to Libya and Eritrea.806
In fact, however, such provisions do not conflict with
the suggested rule, because they cover a different situation
from the one with which we are concerned here. They
involve public property of the ceding State—for example,
the property of Italy in Libya or in Eritrea—whereas
what is under discussion here is the exact opposite,
namely, property of (formerly Italian) Libya or Eritrea
themselves which is outside their geographical boundaries.
(9) There now remains to be discussed the case of
property of the newly independent territory itself which
is in a third State.
2. Property which is situated in a third State
(10) The case in itself does not give rise to any specific
problems. The territory that has become independent
retains full ownership over public property it possesses
in a third country (for example, buildings or premises
situated in a neighbouring country or territory or, more
frequently, the continuation of a railway line). Sometimes
the problems are stated partly in terms of succession
of governments. The case of Algerian funds deposited
in Switzerland during the liberation war is a good example
of this.
51
independence, stated in its statutes, adopted in 1959,
that its resources did not belong to it as a movement
but were "national property" in law and in fact (article 39,
paragraph 2). At the end of the war, the unexpended
balance of the funds intended for use in the struggle
amounted to some 80 million Swiss francs; these funds
were in various bank accounts in the Middle East in the
name of the GPRA and in Europe in the name of the
NLF. In 1962, all these funds were deposited together
in a Swiss bank, in the name of Mr. Mohammed Khider,
General Secretary of the NLF, acting in his official
capacity.
Political differences arose between the Algerian
governmental authorities and Mr. Khider, who was
removed from office as General Secretary of the single
party in power but refused to hand over the remaining
funds which were in his possession at Geneva.
(12) To this day, various civil as well as criminal proceedings, including sequestration of the bank account, have
still not enabled the Algerian State and the NLF to
recover these sums. The problem was not really dealt
with from the standpoint of succession of States or
Governments; it involved criminal matters, because the
bank with which the funds were deposited had improperly allowed Mr. Khider to withdraw them quickly,
although he had just been dismissed from office and no
longer had authority to administer the funds. Consequently, the funds were fraudulently transferred to a destination
and for a purpose still unknown to this day.
If this case is considered, from the civil viewpoint,
as a problem of succession of governments, it has obvious
similarities with the case of the Irish funds considered
later.208 The Algerian liberation movement and its
Provisional Government of the day left property to which
independent Algeria should normally succeed through
its single ruling party and its new Government. From
the outset, this property had the status of "national
property", according to the statues of the NLF.
(13) On 16 July 1964, the Algerian authorities, represented by the leader of the NLF and the Head of the Government, brought a suit before the Swiss courts, which,
however, were induced by the defence to evaluate the
legitimacy of the NLF, although they were judicial bodies
(11) From 1954 to 1962, the Algerian National Libera- and, moreover, foreign ones. This was because the defendtion Front (NLF) had collected funds to cover the cost ant had stated that he would hand over the funds only
of the armed struggle in Algeria. On 19 September 1958, to the "legitimate" NLF. Which NLF ? According to the
a Provisional Government of the Algerian Republic defendant, the one that would emerge from a new
(GPRA) was established at Cairo; it was recognized national Congress of the party. A Congress had in fact
de facto or dejure by some 30 countries.207 The National been held, but the defendant had not considered it
Liberation Front, which was the only liberation party "legitimate". There is no doubt that, from the strictly
during the war and also the only governing party after juridical point of view, this notion of legitimacy should
have been ruled out of the proceedings. The funds had,
203
The Special Rapporteur realizes that the case should not from the outset, been "Algerian national property",
really be considered under "Newly independent States". (See and upon the attainment of independence should certainly
above, the second paragraph of note 96.)
have been returned to the Algerian public authorities,
201
For reference, see note 148 above.
the party and the Government.
205
United Nations, Treaty Series, vol. 267, p. 189.
It is all the more necessary to bring this case—which
208
United Nations General Assembly resolutions 338 (V) of has its own special characteristics, although in some
15 December 1950 and 530 (VI) of 29 January 1952.
respects it resembles the case of the Irish funds—to a
207
See M. Bedjaoui, La rivolution algerienne et le droit (Brussels,
International Association of Democratic Lawyers, 1961), p. 91
and passim.
See below, paras. 1 and 2 of the commentary to article 31.
52
Yearbook of the International Law Commission, 1973, vol. II
logical conclusion because Mr. Khider died at Madrid
on 4 January 1967, and if the funds are not assigned to
the Algerian authorities, to whom they belong, they may
become "ownerless property".
B. Property belonging to the predecessor State
which is situated in a third State
(14) In the draft article under consideration, the Special
Rapporteur had suggested a paragraph 2 whereby property which is situated in a third country and to the
creation of which the formely dependent territory
contributed would be apportioned between the predecessor State and the successor State.
(15) One writer notes that "countries coming into existence through decolonization do not seem to have claimed
any part of the subscriptions of the States which were
responsible for their international relations" 20!) including,
in particular, their representation in international or
regional financial institutions. But the fact that these
newly independent countries—and particularly those
which were deemed in law to form an integral part of the
colonial Power—did not think of claiming some of these
assets, or were unable to do so, cannot logically be used
to cast any doubt on the validity of the principle that has
been enunciated in paragraph 2 of the draft article under
consideration.
(16) This seems to be confirmed by the fact that participation in various intergovernmental bodies of a technical
nature is open to dependent territories and that problems
of the type described above may arise in this area. No
doubt such questions will be examined by the Commission
when it undertakes the study of succession of States
and international organizations.
SECTION 3. UNITING OF STATES
AND DISSOLUTION OF UNIONS
Article 20. Currency and the privilege of issue
1. The privilege of issue shall belong to the successor
State throughout the territory of the union or of each
State in the event of dissolution of the union.
2. In the event of dissolution of the union, the assets of
the joint institution of issue shall be shared pro parte
between the successor States, which in consideration of
the foregoing shall assume responsibility for the obligations
relating to the substitution of new currencies for the former
currency.
COMMENTARY
The possession and exercise of the privilege of issue
are generally regulated in the instruments establishing
the union of States. The privilege of issue is granted to the
successor State, that is to say the union. In the event of
dissolution of the union, each State possesses its privilege of issue, but the practical aspects of resolving the
208
L. Focsaneanu, "Les banques Internationales intergouvernementales", Annuaire francais de droit international, 1963 (Paris),
vol. IX, p. 133.
problems are extremely complex. The peace treaties of
Saint-Germain-en-Laye and Trianon which sanctioned
the dismemberment of the Austro-Hungarian monarchy
had to take account of the wish of the successor States to
exercise their privilege of issue, and to cease accepting
the Austro-Hungarian paper money that the Bank of the
Austro-Hungarian Empire had continued to issue for a
short period. This bank was liquidated, and for the
most part the successor States overstamped the old paper
money during an initial period as outward evidence of
their power to issue currency. 210
Article 21. Public funds and Treasury
1. The union shall receive as its patrimony the public
funds and Treasuries of each of its constituent States except
where the degree of their integration in the union or treaty
provisions allows each State to retain all or part of such
property.
2. In the event of dissolution of the union, the public
funds and Treasury of the union shall be apportioned
equitably between its constituent States.
COMMENTARY
(1) Generally both international treaty instruments and
instruments of internal law (such as a referendum)
define and effect the uniting of States, stating the degree
of integration. It is on the basis of these various expressions
of will that the financial system of the union, and in
particular the treatment of the public funds and Treasuries
of each predecessor State, is established.
Since no precise information on this point is provided
in unification agreements that have been concluded, the
Special Rapporteur felt he should suggest in paragraph 1
of the article under consideration a simple and logical
rule for complete succession of the union to its constituent
States.
(2) Paragraph 2 of the article, dealing with cases of
dissolution of the union, simply states a rule of equitable
apportionment of the joint public funds and Treasury
between the successor States.
210
For the details, somewhat complicated, of the measures
taken in respect of currency, see the two long articles 189 of the
Treaty of Trianon and 206 of the Treaty of Saint-Germain-en-Laye
in British and Foreign State Papers, 1920, vol. 113 (op. cit.),
pp. 561-564 and ibid., 1919, vol. 112 (op. cit.), pp. 410-412.
Article 206 of the Treaty of Saint-Germain and article 189 of the
Treaty of Trianon resolved the problem as follows: (a) "Each one
of the States to which territory of the former Austro-Hungarian
monarchy is transferred and each one of the States arising from
the dismemberment of that monarchy, including Austria and
Hungary" were given two months to ovetstamp the currency notes
issued in their respective territories by the former Austro-Hungarian
institution, (b) The same States were given 12 months to replace
the overstamped notes with their own currency or with a new
currency under conditions to be determined by them, (c) These
same States were either to overstamp the currency notes which
they had already withdrawn from circulation or to hold them at
the disposal of the Reparation Commission. These very long
articles contain other provisions and set up a very complex system
for liquidating the Austro-Hungarian Bank. (See Mones del Pujol,
"La solution d'un grand probleme monetaire; la liquidation de
la Banque d'emission de l'ancienne monarchie austro-hongroise",
Revue des sciences politiques (Paris), vol. XLVI, April-June 1923,
pp. 161-195.)
Succession of States in respect of matters other than treaties
International practice has sanctioned this formula of
liquidation in accordance with the principles of equity.
The Special Rapporteur has accordingly not deemed it
necessary to complicate the text of the article with a
painstaking description of the criteria of equity in a
question which is extremely technical and which he is
far from being competent to judge. While he believes
that the principle of equity should and must be fully
applied, he also believes that any apportionment, if it is
to be equitable, must take into account a great many
factual data which vary from country to country and
situation to situation and which defy codification. In
other words, equity means everything and means nothing,
and it is as well to leave its exact content to be spelled
out in individual agreements.
(3) The dissolution of the short-lived Federation of Mali
was regulated, so far as public funds and debt-claims
are concerned, by a Senegalese-Malian Resolution No. 11,
which allowed each State to take over assets according
to their geographical location. The proportion in which
movable assets were divided between the two States
was set (as in the case of immovable assets) at 62 per cent
for Senegal and 38 per cent for Mali. The State which
received a larger portion of assets than was due to it
was subject to an equalization payment, charged against
its share in the Reserve Fund. 211
Article 22. Archives and public libraries
1. Except where otherwise specified in treaty provisions
aimed at the establishment of a collection of common
central archives, archives and public documents of every
kind belonging to a State which unites with one or more
other States and its public libraries, shall remain its
property.
2. In the event of dissolution, the central archives of the
union and its libraries shall be placed in the charge of the
successor State to which they relate most closely or
apportioned between the successor States in accordance
with any other criteria of equity.
COMMENTARY
(1) The Special Rapporteur will not revert to the importance or to the definition of archives and public documents. 212 It will merely be recalled that "archives"
should be understood in the broadest sense of the term,
as it is used in diplomatic instruments relating to such
cases of dissolution of unions, and accordingly covering
"archives, registers, plans, title-deeds and documents of
every kind". 213
(2) Article 22 is at the same time similar to and different
from the preceding article. As in article 21, treaty stipu211
See J.-Cl. Gautron, "Sur quelques aspects de la succession
d'Etats au Senegal", Annuaire francais de droit international, 1962
(Paris), vol. VIII, 1963, p. 861.
212
See above, commentary to article 14.
213
Treaty of Saint-Germain-en-Laye, article 93, on Austria
{British and Foreign State Papers, 1919, vol. 112 (op. cit.), p . 361)
and Treaty of Trianon, article 77 on Hungary (ibid., 1920, vol. 113
(op. cit.), p. 518).
53
lations are allowed to regulate the fate of the archives of
States in a union. On the other hand, where there are no
treaty provisions the suggested article 22 allows the
predecessor State to dispose of its archives, whereas
article 21 allowed the union, namely the successor State,
freely to dispose of public funds and treasuries.
(3) This distinction obviously had to be made. If the
archives of the predecessor State are historical in character, they are of interest to it alone and of relatively little
concern to the union (unless it is decided by treaty for
reasons of prestige or other reasons to transfer them to
the seat of the union or to declare them to be its property).
Any change of status or application, particularly a
transfer to the union of other categories of archives needed
for the direct administration of each State, would be not
only unnecessary for the union but highly prejudicial for
the administration of the States forming it.
It is a different matter for public funds and treasuries,
the transfer of which to the union must be presumed,
unless there are treaty provisions to the contrary, since
there is no question that they must be the subject and the
necessary instruments of a unified policy within the
union.
(4) Paragraph 2 of the article refers to the case of dissolution. Each of the successor States receives the archives
and public documents of every kind belonging or rather
relating to its territory, on condition that it hands over
copies of them to the other successor States, upon the
request and at the expense of the latter. The central
archives of the union are apportioned between the successors if they are divisible or placed in the charge of the
successor State they concern most directly if they are
indivisible, on condition that in both cases the beneficiary
will make or authorize copies for the other States upon
their request and at their expense.
(5) In general, it is the link between the archives and the
territory which is the determining factor.
For example, following the dissolution in 1944 of the
Union between Denmark and Iceland, the High Court of
Justice of Denmark ruled, in a decision of 17 November
1966,a14 that some 1,600 priceless parchments and
manuscripts containing old Icelandic legends should be
restored to Iceland. It should be noted that these parchments were not public archives, since they did not really
concern the history of the Icelandic public authorities
and administration, and were not the property of Iceland
since they had been put into a collection constituted in
Denmark by an Icelander who was Professor of History
at the University of Copenhagen. He had saved them from
destruction in Iceland, where they were said to have been
used on occasion to block up holes in the doors and
windows in the houses of Icelandic fishermen. These
parchments, whose value has been estimated by experts
at 600 million Swiss francs, had been bequeathed in
perpetuity by their owner to a university foundation in
Denmark.
214
Revue generate de droit international public (Paris), 3rd series,
vol. XXXVIII, No. 2 (April-June 1967), p. 401.
54
Yearbook of the International Law Commission, 1973, vol. II
(6) The Special Rapporteur is obliged to his colleague in
the International Law Commission, Professor Tammes,
for providing information concerning these archives.
Among the 1,600 fragments and sheets which constitute
the so-called Magnusson collection was a two-volume
manuscript (the Flatey Book) written in the fourteenth
century by two monks on the Island of Flatey, an integral
part of Iceland, which traces the history of the kingdoms
of Norway.
The agreement reached ended a long and bitter controversy between the Danes and the Icelanders, who both
felt strongly about this collection which is of the greatest
cultural and historical value to them. On 21 April 1971
the Danish authorities returned the Flatey Book and
other documents; over the next 25 years the entire
collection of documents will join the collection of
Icelandic manuscripts at the Reykjavik Institute.
At the time of the official handing-over ceremony,
when the first documents left the Royal Library at
Copenhagen, the Library flew the flag at half-mast.215
Article 23. Property situated outside the
territory of the union
1. Property situated outside the territory of the union
and belonging to the constituent States shall, unless otherwise stipulated by treaty, become the property of the union.
2. Property of the union situated outside its territory
shall, in the event of dissolution, be apportioned equitably
between the successor States.
from a Southern agent who had settled in England funds
which he had deposited there on the instructions of the
secessionist authorities. The agent in question refused to
hand over these funds to the Federal Government,
arguing that he himself had various claims against the
erstwhile Southern government.
(4) The judgement rendered by the Court of Equity of
England in 1869 recalled the principle that the property of
an insurrectionary government must, if that government
is defeated, revert to the legal government as the successor.
Since, however, the successor State could not have more
rights than the entity in which the rights were formally
vested, the counter-claim of the agent McRae must be
allowed and the amount of his claims, if they were justified,
must be deducted from the funds claimed.
The judgement of the Court therefore confirmed the
principle of the transfer to the successor State of public
property situated abroad; it stated that it is:
the clear public universal law that any government which de facto
succeeds to any other government, whether by revolution or
restoration, conquest or reconquest, succeeds to all the public
property ... and to all rights in respect of the public property of
the displaced powerj-.216
(5) According to some writers, this is a case of succession
of States and not of succession of governments, since the
Southern Confederate Government, which represented a
number of states, had been recognized, at least as a
belligerent, by various foreign States because it had
exercised an effective administration for a lengthy period
of time over a clearly defined territory.
COMMENTARY
(1) The Special Rapporteur admits that he had considerable doubts about suggesting in paragraph 1 of article 23
a rule assigning all property of the constituent States to
the union, when such property is situated abroad. Perhaps
the general structure of the draft articles as a whole
would suggest that a rule to the contrary should be
inserted here, allowing the constituent States to retain
ownership of their property situated abroad. The Special
Rapporteur leaves the question open for discussion.
(2) The rule set out in paragraph 2 of this article seems
sounder. In the event of a dissolution, the property owned
by the union abroad can only be shared "equitably"
among the successor States. There again, the Special
Rapporteur has not tried to seek rigid criteria governing
equitable apportionment, since questions of that kind are
bound to be conditioned by circumstances.
(3) A marginal case will be mentioned here purely as a
reminder. It is difficult to place in the typology of succession and, moreover, it concerns an unsuccessful
attempt to dissolve a union. This is the McRae case,
which arose in connexion with the American War of
Secession.
After the failure of the secession of the Southern states
of the United States, the Federal Government claimed
SECTION 4. DISAPPEARANCE OF A STATE
THROUGH PARTITION OR ABSORPTION
Article 24. Currency and the privilege of issue
1. The privilege of issue shall belong to the successor
State in the territory absorbed or the portion of territory
allocated to it in the partition.
2. The successor State or States shall take over the
assets of the institution of issue and shall assume its liabilities in proportion to the volume of currency in circulation
or held in the territory in question.
COMMENTARY
(1) The observations formulated in the preceding
articles 21'7 regarding the fate of the privilege of issue,
which is an attribute of sovereignty, are obviously also
valid in cases where a State ceases to exist as a result of
partition or absorption, with the slight difference, due to
the radical nature of the situation concerned, that the
privilege of issue can naturally in any event be exercised
only by the successor State by reason of the complete
disappearance of the predecessor State.
216
D . P . O'Connell, State Succession...
(op. cit.), p. 208.
See above, paras. 5-7 of the commentary to article 12;
paras. 1 and 3 of the commentary to article 16; a n d the commentary
to article 20.
217
215
A . E. Pederson "Scandinavian sagas sail back to Iceland",
International Herald Tribune, 23 April 1971, p . 16.
Succession of States in respect of matters other than treaties
(2) At the time of the Anschluss of Austria, Nazi Germany
caused the National Bank of Austria to be absorbed
entirely by the Reichsbank. It did likewise in the case of
the invasion of the Sudetenland and the disappearance of
Czechoslovakia. It had originally been agreed between
Prague and Berlin that the Bank of Czechoslovakia would
hand over to Germany about one sixth of its bullion
reserve—390 million crowns, or just over 12 tons of gold.
However, the German invasion and the dismemberment
of Czechoslovakia upset these original arrangements,
although the German armies did not find in Prague all
the gold coveted by Berlin. However, those were cases of
forced and unlawful territorial transfers.
Article 25. Public funds and Treasury
1. The successor State shall receive the public funds and
the Treasury belonging to the absorbed State in their
entirety, irrespective of where the assets in question are
situated. It shall assume responsibility for the obligations
relating thereto in so far as the rules applying to succession
to the public debt permit.
2. In the event of partition of a State among two or more
pre-existing States, each of them shall succeed to a portion,
which shall be determined by treaty, of the public funds
and the Treasury.
COMMENTARY
(1) Paragraph 1 of article 25 is perfectly logical. Since
the absorbed State no longer exists, its public funds and
Treasury in their entirety can only pass to the State which
benefited from its extinction. After the Anschluss of
1938—to take an example of forced disappearance of a
State—all Austria's assets, of whatever kind, passed to
the Third Reich.
Furthermore, the paragraph could only refer to the
rules concerning succession in respect of the public debt
for guidance on problems connected with obligations
involved in succession to public funds and the Treasury.
(2) In the event that the predecessor State is totally dismembered, with each of its parts being joined to various
pre-existing States, the rule suggested in paragraph 2 of
this article very prudently refers to agreements concluded
among the successor States involved in the partition.
All that can be said is that each State succeeds to a
portion of the public funds and Treasury of the former
State.
Article 26. Archives and public libraries
1. Ownership of archives and public documents of every
kind, and public libraries, belonging to the absorbed State
shall be transferred to the successor State, irrespective of
where such property is situated.
2. Archives and public documents of every kind, and
public libraries, belonging to the State partitioned among
two or more others shall be apportioned between the
successor States with particular regard to the link existing
between such property and the territory transferred to each
State.
55
COMMENTARY
(1) Paragraph 1 of article 26, states a simple rule. The
extinction of the absorbed State leaves the successor
State full freedom to increase its patrimony by the
addition of all public property, including archives and
documents, irrespective of where such property is
situated. In annexing Ethiopia in 1936, or Albania in
1939, Italy had succeeded to all the public property of
these two countries.
(2) The problem of time-limits for handing over archives
does not arise in the same way as in other types of succession; since the predecessor State no longer exists, it
remains only for the successor State to take possession of
the archives, except for those which are situated in a third
State. Similarly, the question of the non-compensatory
nature of the transfer is no longer relevant because of the
disappearance of the predecessor State.
(3) Draft article 26, paragraph 2, covers the case of a
State's extinction because of its partition among two or
more others. In that event, the archives must normally be
apportioned with due regard to the link existing between
them and the part of territory received by each State.
Paragraph 2 is conceived in the same spirit as its counterparts in the two preceding articles.
Article 27. Property situated outside
the absorbed or partitioned territory
1. Subject to the application of the rules relating to
recognition, ownership of all public property of the State
that has disappeared which is situated outside its territory
shall devolve to the successor State.
2. In the event of total dismemberment of a State in
favour of two or more other pre-existing States, property
situated outside the State that has disappeared shall be
shared equitably among the successor States.
COMMENTARY
(1) Writers take the view that the absorbed or partitioned
State no longer has the legal capacity to own property
and that its property abroad would become ownerless if
it were not transferred to the successor State. Consequently, some writers feel that there would be no reason
for refusing to assign such property to the successor
State.
(2) This reasoning is not wholly satisfactory. Abandonment of the property is not the reason for the right to
succeed; at the most, it is the occasion for it. After all,
ownerless property may be appropriated by anyone, and
not necessarily by the successor. Indeed, if abandonment
were the only consideration, it might seem more natural,
or at least more expedient, to assign the property to the
third State in whose territory it is situated.
In fact, State succession sets off a process of transfers
of rights which must definitely be effected in favour of the
successor State, and not at all in favour of the predecessor
State or the third State.
56
Yearbook of the International Law Commission, 1973, vol. II
(3) Judicial decisions sometimes seem not to have followed
the rule of devolution to the successor State of all the
patrimony of the State that has disappeared, because a
problem of recognition arose.
The foreign State in whose territory the property
claimed by the successor State is situated usually allows
the claim only if it has recognized the successor State
dejure. This can be seen from a judgement of the Court of
Appeal of England 21S After the annexation of Ethiopia
by Italy in 1936, Emperor Haile Selassie claimed from a
cable and wireless company sums which it owed to him.
The company pleaded in defence that the debt owed to
the Emperor in his sovereign capacity had passed into
the patrimony of the Italian State which had succeeded
the sovereign, who had been divested of all public
property.
ties, which reverted to it despite an appeal by the Emperor
Haile Selassie. The original decision was confirmed on
appeal 22° and, although the ruling again dealt solely
with the question of jurisdiction, the result was to leave
the successor State the ownership of public property of
the predecessor State situated abroad. Thus, the two
decisions had the indirect effect of sanctioning the
principle of the transfer of public property.
(4) In the Chancery Division, where the case had been
tried, the main issue had been the effect of the United
Kingdom's de facto recognition, on 21 December 1936,
of Italy's annexation of Ethiopia, of which the Emperor
was still recognized by the United Kingdom to be the
de jure sovereign. The trial court had ruled, in a decision
of 27 July 1938, that the de facto recognition of the annexation was not sufficient to effect the transfer to Italy
of the property situated in England, and the case was
taken to the Court of Appeal. However, on 16 November
1938, before the appeal was considered on its merits, the
United Kingdom finally recognized the King of Italy as
the de jure Emperor of Ethiopia. The Court of Appeal
ruled, in its judgements of 6 December 1938, that the
right to sue had itself become vested in the successor
State since the de facto recognition of 21 December 1936
and that the title to the property situated in England had
accordingly passed to the new sovereign. The principle
of succession to public property situated abroad was thus
sanctioned even in the case of de facto recognition.
(7) The position taken by certain Powers in the case of the
annexation of Ethiopia may be compared to that taken
by them in the matter of the incorporation of the Baltic
States in the USSR.222 That incorporation was not
recognized by some countries, including the United
Kingdom and the United States, which refused to accept
the Soviet Socialist Republics as the successors to those
States in the case of property situated abroad. The
Western countries which did not recognize the incorporation continued for a number of years to accept the
credentials of the former representatives of those States,
whom they recognized as possessing the right of ownership, or at least of management, over property situated
outside the frontiers of the Baltic Republics. For a long
time, premises of legations and consulates, and Baltic
ships, 2a3 were not recognized as being the property of
the successors. The situation was normalized later.
(5) Emperor Haile Selassie was equally unsuccessful in
the French courts on another occasion. In his sovereign
capacity, he was the holder of 8,000 shares of the FrancoEthiopian Djibouti-Addis Ababa Railway Company,
registered in the name of the Ethiopian Government; he
wanted to convert the shares into bearer securities and to
cash the coupons which had matured. The Italian Government lodged an objection with the Company's head
office in Paris, requesting that the Emperor should be
prohibited from selling, transferring or ceding the
securities, which it claimed should revert to the successor
State. The juge des referes of the Tribunal de la Seine, to
whom the displaced sovereign applied for an order barring
the objection of the Italian Government, declared that
he had no jurisdiction in the case of an act of sovereignty
by Italy.219 The practical effect of this decision was to
leave the Italian Government in ownership of the securi218
Court of Appeal of England, judgement of 6 December 1938,
Emperor Haile Selassie v. Cable a n d Wireless, Ltd. ( H . Lauterpacht,
Annual Digest and Reports of Public International Law Cases,
1938-1940 (London, Butterworth, 1942), case N o . 37, p p . 94-101).
219
O n e of t h e reasons given in the decision w a s :
"The Juge des referes cannot pass judgement o n the validity
of the objections without resolving, at least implicitly, t h e dispute
regarding the ownership of t h e securities, which is a n extremely
weighty matter involving principles of public international law
(6) However, in all these situations of total dismemberment, absorption, incorporation and partition, the main
problem—over and above questions of recognition—
undoubtedly remains that of situations not in conformity
"with international law and, in particular, the principles of
international law embodied in the Charter of the United
Nations".221
Professor Guggenheim reports the decision of the
Swiss Federal Council of 15 November 1946 224
and of private law that are manifestly outside his jurisdiction"
(Tribunal civil de la Seine, ordonnance de refere of the President
of the Tribunal, dated 2 November 1937, Gazette du Palais
16 December 1937; commentary in C h . Rousseau, " L e conflit
italo-ethiopien, Revue generate de droit international public (Paris),
3rd series, vol. X I I , N o . 1 (Jan.-Feb. 1938), p p . 98-99; and
ibid., 3rd series, vol. XIII, N o . 4 (July-Aug. 1939), p p . 445-447).
230
Appeals Court of Paris, Haile Selassie v. Italian State,
1 February 1939; Gazette des tribanaux, 18 March 1939; Gazette
du Palais, 11 April 1939; Revue generate de droit international public
(Paris), 3rd series, vol. XVIII, N o . 1947), p . 248. In addition to
its o w n statement of reasons, t h e Court repeated word for word
the statement of reasons given by the juge des referes (quoted in
preceding foot-note).
221
See article 2 above.
222
See, in particular, K . Marek, Identity and Continuity of States
in Public International Law (Geneva, Droz, 1954), p p . 369-416;
M. Flory, Le statut international des gouvernements refugies et le cas
de la France libre, 1939-1945 (Paris, Pedone, 1952), p p . 202-205
and passim, a n d their bibliographies.
223 Eleven ships flying t h e flag of the Baltic nations remained
in United States ports for a long time as "refugees". See H . W. Briggs,
"Non-recognition in the Courts: the Ships of the Baltic Republics",
American Journal of International Law (Washington, D.C.), vol. 37,
N o . 4 (October 1943), p p . 585-596. T h e United Kingdom h a d
requisitioned 34 Baltic ships during the Second World W a r , but
entered into negotiations o n the subject with the USSR, which it
finally recognized as the owner of the ships.
224
Switzerland, Rapport du Conseil federal a I 'Assemblee federate
sur sa gestion en 1946, No. 5231, 1 April 1947, p. 119.
Succession of States in respect of matters other than treaties
placing under the trusteeship of the Confederation the public
property of the Baltic States, as well as the archives of their
former diplomatic missions in Switzerland, those missions having
ceased to be recognized as from 1 January 1941.22E
(8) In drafting paragraph 2 of the article under consideration, the Special Rapporteur took into consideration
situations such as arose following the various partitions
of Poland among several neighbouring States. He will
supply later some specific information regarding the
devolution of public property situated outside the
territory of partitioned Poland.
SECTION 5. SECESSION OR SEPARATION
OF ONE OR MORE PARTS OF ONE OR MORE STATES
Article 28. Currency and the privilege of issue
1. The privilege of issue shall belong to the successor
State throughout the detached territory or territories.
2. Currency, gold and foreign exchange reserves, and,
in general, monetary tokens of all kinds which are proper
to the detached State shall pass to the successor State.
3. In consideration of the foregoing, the successor State
shall assume responsibility for the exchange of the former
monetary instruments, with all the legal consequences
which this substitution of currency entails.
COMMENTARY
(1) Article 28 is similar to article 16, which deals with
currency and the privilege of issue in the case of the
emergence of a "newly-independent State". That should
not be surprising, as cases of secession or separation have
been treated separately from cases of decolonization for
purely methodological reasons. 228 Accordingly, for the
sake of convenience the Special Rapporteur refers the
reader to his commentary on article 16, at least as regards
considerations of a general nature, which apply equally
to that article and to article 28.
57
and Austro-Hungarian crowns 227 or declared that those
currencies had lost their value as legal tender. 228
Article 29. Public funds and Treasury
1. Irrespective of their geographical location, public
funds and Treasury which are proper to the detached
territory shall not be affected by the change of sovereignty.
2. The State fortune—its public funds and Treasury
assets—shall be apportioned between the predecessor
State and the successor State, due regard being had to the
criteria of viability of each of the States.
COMMENTARY
(1) Paragraph 1 of article 29 states a rule which is
followed in nearly all cases of State succession. There is
no apparent reason why the public property of the
detached territory, in particular its assets, its Treasury
and its own funds, should not remain its property.
Paragraph 2, on the other hand, deals with the fortune.
The part of the territory transferred may be fairly substantial and there is no reason why the remaining territory
alone should retain the public funds and the Treasury in
their entirety. It therefore seemed appropriate to provide
for this property to be apportioned between the predecessor State and the secessionist State. That is also why
the Special Rapporteur considered that the viability of
each of the States must be the basic criterion.
(2) The most recent case of secession is that of Bangladesh. However, it has not yet been possible to obtain
much information regarding the practice followed in this
case.
Article 30. Archives and public libraries
1. Archives and public documents of every kind relating
directly or belonging to a territory which has become
detached in order to form a separate State, and public
libraries of that State, shall, irrespective of where they are
situated, be transferred to the latter State.
(2) When Czechoslovakia was established after the First
World War as a result of the detachment of several
territories of the former Austro-Hungarian empire, the
currency of Czechoslovakia was created in 1919 simply
by overprinting the Austrian notes in circulation in the
territory of the new Republic and reducing their value
by 50 per cent.
2. The successor State shall not refuse to hand over
copies of such items to the predecessor State or to any
third State concerned, upon the request and at the expense
of the latter State, save where they affect the security or
sovereignty of the successor State.
(3) The Polish State, reconstituted after the First World
War from territories recovered from Germany, Austria,
Hungary and Russia, introduced the zfoty, a new national
currency, without initially prohibiting the circulation of
the currencies formerly in use. Accordingly, for a time
four different currencies were in circulation simultaneously
in Poland. Subsequently, various legislative measures
required the exchange of German marks, Russian roubles
(1) This article is identical with articles 14 and 18
suggested above to cover cases of partial transfer of
territory and emergence of a newly independent State,
respectively. Accordingly, the Special Rapporteur refers
the reader to the commentaries on these articles, as the
situation in all these cases is basically the same, at least
in so far as concerns archives and public libraries.
225
P. Guggenheim, op. cit., p . 466, note 1.
See paras. 33 and 34 above. These are methodological reasons
at least in the case of succession to public property. They could
prove more complex in the case of succession to public debts.
COMMENTARY
(2) The territories which were detached from the AustroHungarian empire to form new States—such as Czecho-
226
227
228
See, in particular, t h e A c t of 9 M a y 1919.
See, in particular, the Act of 29 April 1920.
58
Yearbook of the International Law Commission, 1973, vol. II
Slovakia—after the First World War arranged for the
archives concerning them to be handed over to them.829
Yugoslavia and Czechoslovakia subsequently obtained
from Hungary, after the Second World War, by the
Treaty of Peace of 1947, all historical archives which had
come into being under the Austro-Hungarian monarchy
between 1848 and 1919 in those territories. Under the
same Treaty, Yugoslavia was also to receive from
Hungary the archives concerning Illyria, which dated
from the eighteenth century.230
left room for some uncertainty in a case known as the
case of Irish funds deposited in the United States of
America.2sa
Irish revolutionary agents of the Sinn Fein movement
had deposited in the United States funds collected by a
republican political organization, the Dail Eireann, which
had been established at the end of the First World War
with the aim of forcibly overthrowing the British authorities in Ireland and proclaiming the independence of
the country. During the Irish uprising of 1920-1921,
(3) Article 11, paragraph 1, of the same Treaty specifically these movements brought forth a revolutionary republican
states that the detached territory which had formed a de facto Government, headed by Eamon De Valera.
State, such as Czechoslovakia, was entitled to the objects
When a Government of the "Irish Free State" was
"constituting [its] cultural heritage . . . which originated in constituted by the Treaty of 6 December 1921, between
those territories *"; thus, the article was based on the Great Britain and Ireland, this new authority claimed
link existing between the archives and the territory, which the funds from the United States, as the successor of the
explains the expression "archives relating directly to a insurrectionary de facto Government.
territory" suggested by the Special Rapporteur in the
An Irish court upheld this claim, ruling that the Governdraft article under consideration.
ment of the Irish Free State was "absolutely entitled to
(4) In the same case, moreover, paragraph 2 of the same all the property and assets of the [de facto] Revolutionary
upon which as a foundation it had been
article rightly stipulates that Czechoslovakia would not Government 233
be entitled to archives or objects "acquired by purchase, established".
gift or legacy and original works of Hungarians", which
implies a contrario that objects acquired by the Czecho- (2) However, an American court dismissed the claim.
slovak territory should revert to it. That explains the The two judgements to this effect rendered by the234Supreme
stated
expression "archives belonging to a territory" which the Court of New York (New York County)
Special Rapporteur has used in his draft. This property that, although the case involved a problem of succession
of State or government, the Court considered that the
was in fact returned to Czechoslovakia.231
Irish Free State was the successor of the British State
(5) The aforementioned article 11 of the Treaty of Peace and that consequently the Government of the Free
with Hungary of 10 February 1947 is one of the most State was not the successor of the "insurrectionary governspecific with regard to time-limits for the handing over ment", which was only a political organization and not
of archives: it establishes a veritable time-table within a government recognized as such by the British authorities
a maximum time-limit of 18 months.
or by any foreign State.
The Supreme Court of New York therefore held that
only Great Britain could be entitled to claim the funds.
Article 31. Property situated outside
Although the case does not concern a succession of
the detached territory
States, it is interesting to note that it could be deduced
1. Where a State comes into being as a result of the from the reasons stated by the Court that, if the funds
detachment of a part of the territory of one or more States, had been paid over to Great Britain, the Irish Free State
the ownership of public property belonging to the said would in turn have been able to claim them from Great
constituent territory or territories which is situated outside Britain as the successor State of that country.
their frontiers shall not be affected by such change or
changes of sovereignty.
2. Public property belonging to the predecessor State
which is situated in a third State shall become the property
of the successor State in proportion to the contribution
of the detached territory to the creation of such property.
COMMENTARY
(1) Article 31, paragraph 1, states a rule which does not
appear to give rise to any doubts, although the courts
22
» Article 93 of the Treaty of Saint-Germain-en-Laye (British
and Foreign State Papers, 1919, vol. 112 (op. cit.), p . 361) a n d
article 77 of t h e Treaty of T r i a n o n (ibid., 1922, vol. 113, (op. cit.),
p . 518).
230
Article 11 of t h e Treaty of Peace with H u n g a r y of 10 February
1947 (United Nations, Treaty Series, vol. 4 1 , p . 178).
231
T h e same provisions were applied in the case of Yugoslavia
in article 12 of t h e Treaty of 10 February 1947 already referred
t o (see note 148 above).
(3) The reader will recall the McRae case mentioned
earlier,835 which, although it related to the dissolution
of unions, can also be considered from the standpoint
232
See E. D . Dickson, " T h e case of t h e Irish Republic's funds",
American Journal of International Law (Washington ( D . G ) , vol. 2 1 ,
N o . 4 (October 1927), p p . 747-753; J. W . G a r n e r , " A question of
State succession", ibid., p p . 753-757; D . P . O'Connell, State
Succession...
(op. cit.), p p . 208-209; C. K . Uren, " T h e succession
of t h e Irish Free State", Michigan Law Review (Ann Arbor, Mich.),
vol. X X V I I I (1929-1930), 1930, p . 149; C h . Rousseau, Cours de
droit
international public—Les transformations territoriales...
(op. cit.), p p . 145-146.
233
Supreme C o u r t of the Irish Free State, F o g a r t y a n d others
v. O ' D o n o g h u e a n d others 17 December 1925. See A . D . M c N a i r
and H . Lauterpacht, Annual Digest of Public International
Law
Cases, 1925-1926 (London, Longmans, Green, 1929), case N o . 76,
p p . 98-100.
23t
Supreme Court of N e w Y o r k (New Y o r k County), Irish
Free State v. G u a r a n t y Safe Deposit C o m p a n y . Ibid., case N o . 77,
p p . 100-102.
235
See above, paras. 3 a n d 5 of t h e commentary to article 2 3 .
Succession of States in respect of matters other than'treaties
of secession. It was, however, an attempt at separation
which failed.
(4) The diplomatic practice followed by Poland when it
was reconstituted as a State upon recovering territories
from Russia, Austria-Hungary and Germany was, as
is known, to claim ownership, both within its boundaries
and abroad, of property which had belonged to the
territories which it recovered.
(5) Paragraph 2 of the article would apply to cases of
property belonging to the predecessor State or States
part or parts of whose territory had been detached to
form the new State. Where the constituent territory or
territories contributed to the constitution of property
situated in a third State, they are entitled to claim their
share of that property, which would be determined on
the basis of their contribution.
(6) However, this rule apparently has not always been
followed in diplomatic practice. In considering the case
of the dismemberment of the territories of the Habsburg
dynasty, there is observable, inter alia a type of secession,
in that Czechoslovakia, for example, was formed from
certain territories which were detached from the Empire.
(7) An arbitral award was in fact delivered at Czechoslovakia's request in a case involving the cession of vessels
and tugs for navigation on the Danube. m
In the course of the proceedings, Czechoslovakia had
submitted a claim to ownership of a part of the property
of certain shipping companies which had belonged to the
Hungarian monarchy and to the Austrian Empire or
received a subvention from them, on the ground that
these interests were bought with money obtained from
all the countries forming parts of the former Austrian
Empire and of the former Hungarian Monarchy, and
that such countries contributed thereto in proportion to
the taxes paid by them, and therefore, were to the same
proportionate extent the owners of the property.237
(8) The position of Austria and Hungary was that, in
the first place, the property was not public property, which
alone could pass to the successor States, and, in the
second place, even admitting that it did have such status
because of the varying degree of financial participation
by the public authorities, "the Treaties themselves do not
give Czechoslovakia the right to State property
except
to such property situated in Czechoslovakia *".238
The arbitrator did not settle the question, on the ground
that the treaty clauses did not give him jurisdiction to
take cognizance of it. There is no contradiction between
this decision and the principle of succession to public
288
Case of the cession of vessels and tugs for navigation on
the Danube, Allied Powers (Greece, Romania, Serb-Croat-Slovene
Kingdom, Czechoslovakia) v. Germany, Austria, Hungary and
Bulgaria (Decision: Paris: 2 August 1921, Arbitrator: Walker
D . Hines (USA)). (See United Nations, Reports of International
Arbitral Awards, vol. I (United Nations publication, Sales N o . 1948.
V.2), p p . 97-212.)
237
Ibid., p . 120.
238
Ibid., p p . 120-121. T h e reference was to article 208 of the
Treaty of Saint-Germain-en-Laye {British and Foreign State Papers,
1919, vol. 112 (op. cit.), p p . 412-414), and article 91 of the Treaty
of Trianon {ibid., 1922, vol. 113 (op. cit.), p p . 564-565).
59
property situated abroad. It is obviously within the
discretion of States to conclude treaties making exceptions
to a principle.
V. PROVISIONS RELATING
TO PUBLIC ESTABLISHMENTS
Article 32. Definition of public establishments
For the purposes of the present articles, "public establishments" means those bodies or enterprises which engage
in an economic activity or provide a public service and
which are of a public or public utility character.
COMMENTARY
(1) As the domestic legislation of many States is relatively
vague in its definition of "public establishments" or
equivalent bodies, it would seem preferable to define
such institutions less by their designation in domestic
legislative texts than by the objective nature of their
functions.
Public establishments exist in almost all sectors of
human activity: educational sector (universities, colleges,
secondary schools, research institutions, museums,
theatres, libraries); social sector (hospitals, social
welfare and assistance agencies); financial sector (institutions of issue, banks, savings banks, Treasuries);
communications sector (railways, port establishments,
airports); etc.239
The activities of these bodies vary in scope according
to the country. However, they all have the characteristic
either of providing or assuring a public service or of
engaging in a public activity within the framework of
the national economy.
A. The public establishment administers a public service
(2) The public establishment, which is set up to administer
a public service, is for that purpose provided with a
statute determining its structure and mode of operation.
Its creation, like its abolition, is closely bound up with
that of the public service in question. The establishment's
patrimony is made up of property which may belong
to the State in whole or in part; in the latter case, the
remainder of the property belongs to various territorial
authorities (municipalities, departements, districts, arrondissements, etc.) or to the public establishment itself. The
public establishment is in fact a body corporate. Its
public character derives from the fact that it provides a
238
Like French administrative law, German law makes a distinction between public establishment ("offentliche Anstalt") and public
enterprise ("offentliche Unternehmung"). Anglo-Saxon law hardly
seems to make any distinction between "public corporation",
"enterprise", "undertaking" and "public undertaking" or "public
utility undertaking". Spain has "institutos publicos", Italy has
"enti pubblici" and "imprese pubbliche", Latin America has
"autarquias" and Portugal has "estabelecimentos publicos" or
"fiscalias". See W. Friedmann, The Public Corporation: A Comparative Symposium (University of Toronto School of Law, Comparative
Law Series, vol. 1, London, Stevens, 1954).
60
Yearbook of the International Law Commission, 1973, vol. It
public service to a particular population or a segment
of that population.
B.
The public establishment may engage
in an economic activity
(3) The public establishment of an industrial or commercial character, which takes a variety of forms and appellations according to its origins and purpose, generally
has a different legal regime from that of the first type
of public establishment. It enjoys a greater measure of
independence in relation to the Government than does
the first type, basing its organization and administration
on private law procedures. The establishment's patrimony
is made up of property which may belong to the State,
to local authorities, to the establishment itself and on
occasion, in the case of mixed companies, to private
individuals. In any event, the public establishment in
question clearly has a public character in these cases too.
C.
The establishment of public utility or general interest
(4) An establishment in this particular category does not
administer a public service but engages in an activity
which is sufficiently important for the population to be
regarded as being "of general interest" or "of public
utility". A public establishment in this category, which
is set up by private initiative, may be of two kinds: it
may engage in activities substantially similar to those
of a public service where the latter does not hold a
complete monopoly on activities of that type; it may
provide a special service to a group where the Government feels that it is unnecessary to set up a public service
to cater for the needs of such a small group, although it
intervenes to recognize the public utility character of the
establishment which caters for such needs.
(5) The Government extends help or assistance to the
private public utility establishment in a variety of forms
(subsidies, preferential customs or tax treatment, special
pricing system, monopoly status, public authority privileges such a expropriation or the levying of taxes). In
return for such assistance, the Government is accorded
supervisory authority over the establishment.
D.
The public or public utility character
(6) Despite the variety of the legal regimes to which they
are subject, the three categories of establishment mentioned
above have one feature in common: their public or public
utility character. The existence of this characteristic can
be determined by the link the establishment and the territory—in other words, according to the relationship
between the body and the population and to the link
between the establishment and the economy of the
territory.
1. Link with the population
(7) The establishment is intended to meet public needs in
a particular sector. In the case relating to the interpretation of article 260 of the Treaty of Versailles submitted
to arbitrator Beichmann, the Reparation Commission
took the view that the link between the establishment
and the population was of paramount importance for
the purpose of attributing to an undertaking the character
of a public utility. Such an undertaking should " . . . serve
the great majority of consumers * in a fairly sizable
expanse of territory" 24 ° and "satisfy an essential need
of a community by collective means of distribution"* 241 or,
again, provide "in a fairly extensive territorial area, in
order to satisfy a collective need* a service considered
to be of general utility in all modern civilized communities". 242
Arbitrator Beichmann also emphasized this link by
concluding that public establishments "express the idea
of a special utility for the general public and sometimes
also of direct use by the public". 243
2.
Link with the economy of the territory
(8) By its activities, the establishment may "supply
industrial and commercial undertakings scattered throughout the territory and furnish them with raw materials". 244
(9) The dual link with the economy and the population
of the territory highlights the importance in the establishment or undertaking of the objective element constituted
by their public utility character in general and conveniently
relegates to a secondary position the excessive variety of
criteria for a definition which may be derived from the
municipal law of each State. Arbitrator Beichmann did
in fact draw attention to a number of differences 245 in
the designation of the body in question between one
municipal juridical order and another. 246
E.
Criteria for a definition
(10) For these reasons, a tendency can be observed for
international judicial decisions to reject criteria for a
definition which are derived from municipal law in the
event of a change of sovereignty affecting a territory.
Three examples of this approach may be cited.
1.
Arbitral award concerning the interpretation
article 260 of the Treaty of Versailles
of
(11) In this case, the parties to the Treaty of Versailles
held conflicting views concerning the true meaning of
the expression "public utility undertaking" used in
article 260 of the Treaty, each of the parties attempting
240
Case of German reparations: Arbitral award concerning
the interpretation of article 260 of the Treaty of Versailles [arbitrator
F . W . N . Beichmann], publication de la Commission des reparations,
annex 2145a (Paris, 1924), a n d United Nations, Reports of International Arbitral Awards, vol. I fop. cit.), p . 455.
241
Ibid., p . 456.
242
Ibid., p . 455. T h e Commission added that "utilization by the
public is a n important element^" in a definition (ibid., p . 462).
213
Ibid., p . 468.
244
Ibid., p . 455.
245
Ibid., p . 460 a n d foot-note.
24 6
Even where the body is recognized as having a public character,
its real nature is often the subject of learned disputes between jurists
of various schools of thought within a particular juridical order
(public establishment, public undertaking, public establishment
of a n industrial or commercial nature, public service, public body,
public utility undertaking, etc.).
Succession of States in respect of matters other than treaties
61
to win acceptance for the more or less broad interpretation, given to these terms in its own administrative law.
After analysing the various arguments advanced, Arbitrator Beichmann expressed the view that the expressions
"entreprise d'utilite publique" and "public utility undertaking" contained in the article applicable to the calculation of German reperations "could not be regarded as
having been taken from English or French legal vocabulary
or as being related to any expression used in the
administrative law of either country".*247 He also took
the view that the expression "public utility undertaking"
could not necessarily be linked to the concept of "devolution of public authority or [to] other criteria of a
juridical nature such as those contained in the definition
in the German Government's conclusions". 248
decided that it "has [had] no need to rely upon this interpretation of Hungarian law.* It is content to observe that
the distinction between public and private property, in
the sense of the Czechoslovak Government's argument,
is neither recognized nor applied by the Treaty of
Trianon". 252
(12) After rejecting all interpretations of the disputed
expression contained in municipal law, the arbitrator
concluded by expressing the opinion that its meaning,
and hence its definition, should accord with the meaning
which it had in everyday language.
(17) Doubtless because the definition or "public establishments or bodies" is a difficult question, the predecessor
State and the successor State sometimes prefer to list
such establishments or bodies in treaty form in the
devolution agreements which they conclude. This procedure is followed frequently in the case of all types of
succession but has become common practice in cases
of decolonization.
2.
Decision of the United Nations Tribunal in Libya
(13) The Tribunal, which was set up by United Nations
General Assembly resolution 388 (V) of 15 December
1950, had to decide, in connexion with the transfer to
Libya of property belonging to the Italian State, whether
a number of institutions formerly governed by Italian
law could be deemed to be "public establishments"
within the meaning of article 1 of annex XIV to the Peace
Treaty of 10 February 1947. The agent of the Italian
Government had contended that the Tribunal's decisions
must relate to the character of an "ente pubblico" in the
strict sense of the term and in conformity with the meaning
of that term in Italian legislation.
(14) The Tribunal rejected this view, stating that it was
"not bound by Italian legislation and case law.* The Tribunal will therefore consider this question by freely
appraising the various factors in each individual case". 249
In the opinion of the Tribunal, the parties "purposely
chose a term with a general meaning, broader than the
term 'ente pubblico'' in Italian law". 250
3.
Decision of the P.C.I. J. in a case relating to a Hungarian
public university establishment251
(15) It will be recalled that, in the case of property
belonging to the Peter Pazmany University of Budapest
and situated in territory ceded by Hungary to Czechoslovakia, the Permanent Court of International Justice
247
United Nations, Reports of International Arbitral
Awards,
vol. I (op. cit.), p . 467.
248
Ibid.
248
"Case of the institutions, companies and associations
mentioned in article 5 of the agreement concluded o n 28 June 1951
between the United Kingdom a n d Italian Governments concerning
the disposal of certain Italian property in Libya", decision of
27 June 1955 (United Nations, Reports of International
Arbitral
Awards, vol. X I I (United Nations publication, Sales N o . 63.V.3),
p. 390).
260
Ibid.
261
See Yearbook...l970,
vol. I I , p . 140, document A/CN.4/226,
part two, paras. 27-30 of the commentary to article 1.
(16) Thus, international judicial tribunals do not regard
themselves as bound by municipal law; the status of a
particular public establishment should be appraised
on the basis of its various individual features or the wish
expressed by the contracting parties.
F.
Determination by treaty
In particular, France concluded with the Frenchspeaking African States many agreements regulating the
future status of "French public bodies" and certain "French
administrative entities" situated in those countries.
However, no attempt should be made to find in these
treaty provisions elements for a strict definition of public
establishments or for determining their property or the
legal nature of their rights over such property, or reasons
of principle justifying the maintenance of such establishments within the patrimony of the predecessor State.
"The concept of the French public body", writes
Mr. Daniel Bardonnet, "is quite unspecific from the
legal standpoint. It seldom involves . . . more than the
existence of body corporate status and financial independence. In practice, it is merely a convenient tag to
cover a rather motley assortment of public and semipublic bodies and bodies of public interest. . . ", 253
Article 33. Public establishments
of the transferred territory
Public establishments which belong entirely to the
transferred territory shall not be affected by the mere fact
of the change of sovereignty.
252
Judgement of 15 December 1933, "Appeal from a judgement
of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (The
Peter Pazmany University v. the State of Czechoslovakia)", P.C.I.J.,
Series A/B, No. 61, pp. 236-237.
263
D. Bardonnet, op. cit., p. 601. After an unusually detailed
analysis, the writer expressed the opinion, inter alia, that "the list
of French public bodies, as contained in the (Franco-Malagasy)
liquidation statement of 18 April 1961 should be reviewed. It is
irregular for the list to include joint-stock companies belonging
to Madagascar itself, such as the Soctete d'Energie de Madagascar...
or the Society des petroles de Madagascar. Similarly, the manager
of the Compagnie francaise pour le developpement des fibres
textiles went so far as to request that the company's name should
be removed from the list, since in his view that establishment
was purely private in character" {ibid., p. 602, foot-note 146).
62
Yearbook of the International Law Commission, 1973, vol. II
COMMENTARY
(1) The legal status of public bodies or corporations
or of public enterprises and establishments which are
proper to the territory affected by the change of sovereignty cannot be affected by the succession of States as
such. Irrespective of the type of succession, the patrimony
of the territory retains the status which it had prior to
the change.
(2) The situation is clear for the cases of (a) partial
transfer of territory, (b) a newly independent State
and (c) secession or separation of part of the territory of
a State. In the event of (d), the uniting of States, the rule
seems to be as fully applicable as in the other cases:
the public establishments of each of the uniting States
will remain the property of those States, save where
treaty provisions state the contrary. In the event of
dissolution of the union, if each State constituting the
union owned public establishments in its territory, it is
evident that, a fortiori, it cannot be divested of ownership
of such establishments when the union is dissolved.
The only remaining possibility is the absorption of a
State or its partition among several others: this is a case
in which the totality of the transferred territory is coextensive with that of the predecessor State. In other words,
"public establishments which belong entirely to the
transferred territory", that is to say, bodies owned by
the territory itself, are in this case nothing but establishments belonging to the absorbed or partitioned State,
and we must therefore refer to the case considered in
article 34, relating to State property in public establishments.
belonged to the Sherifian State"255 but that the same was
not true of "the installations" of Radio-Tunis.
(5) In fact, the French-Tunisian Agreement concerning
Broadcasting of 29 August 1956 provided that beginning
on 31 March 1957, "all of the land, buildings, premises
and installations belong to Radiodiffusion francaise in
Tunisia shall be transferred with full rights of ownership
to the Tunisian State through the latter's purchasing
them within the framework of property negotiations
between the two countries". The Agreement would
enable the Tunisian Government to carry on for itself
as from 31 March 1957 "the management, operation
and equipping of Radiotele'vision tunisienne".
(6) Public establishments which were the property of
Algeria were retained by the latter on its accession to
independence.
The Declaration of Principles concerning Economic
and Financial Co-operation, dated 19 March 1962,256
stated in article 18 that "Algeria shall assume the obligations and enjoy the rights * contracted on behalf of
itself or of Algerian * public establishments by the
competent French authorities. But Algeria provisionally
left to France the use of certain services for the needs of
technical and cultural co-operation between the two
countries, as happened also between France and the
other countries of the Maghreb or the African and
Malagasy States.257
Article 34. Property of the State
in public establishments
(3) There is no lack of examples for each type of succession; however, to avoid making unduly long comment
aries on an article which is self-evident in any case, we
shall confine ourselves here to considering the case of decolonization alone, and, within decolonization, to the
sole case of North Africa.
The successor State shall be automatically and fully
subrogatedl to the patrimonial rights which the predecessor
State possesses in public establishments situated in the
transferred territory.
(4) For example, the French-Moroccan protocol concerning the distribution of public services between
Morocco and France, signed at Rabat on 11 February
1956, specified clearly, even in its title, that during the
protectorate the French Residence generate had possessed
in Morocco only "management powers" over certain
public establishments, the Moroccan ownership of which
was thus recognized. Radio-Maroc, the State Printing
Office and the educational services were consequently
taken over once more by the Sherifian Government.
In this connexion the French Secretary of State for
Tunisian and Moroccan Affairs subsequently informed
a member of the French Parliament who inquired about
the restoration of the educational services that "All of
those services have always been Sherifian at the administrative and budgetary levels".254 Later he added that
"In Morocco the buildings and equipment of RadioMaroc, paid for from the Moroccan budget, have always
(1) The rule suggested above is simple, clear and logical,
but it must be admitted—that it has been applied only
intermittently. The Special Rapporteur ventures, however,
to submit it to the Commission, leaving the latter to
judge whether the uncertainty of the use of the rule in
practice appears to have the effect of annulling it or of
requiring that it be amended. A study of State practice
provides us with equally numerous examples of (a) automatic and complete succession of the successor State to
254
Reply by the Secretary of State for Tunisian and Moroccan
Affairs to a written question from Mr. Michel Debre, No. 6663
(France, Journal officiel de la Republique frangaise, Debats parlementaires: Conseilde la Republique (Paris), 20 June 1956, year 1956,
No. 37 C. R., p. 1191).
COMMENTARY
265
Reply by the Secretary of State, Office of the Prime Minister,
to an oral question from Mr. Michel Debre' (ibid,, 16 January 1957,
year 1957, No. 1 C. R., p. 7).
256
United Nations, Treaty Series, vol. 507, p. 65.
267
Article 2 of the Declaration of Principles concerning Cultural
Co-operation stated in this connexion that "France will retain t
a certain number of educational establishments in Algeria" (ibid.,
p. 77). In pursuance of that article, the French-Algerian Protocol
of 7 September 1962 concerning the Distribution of Educational
Establishments provided for "a provisional distribution" of those
establishments and included an annex entitled "List of establishments
retained^ by France". Under another protocol, of 11 June 1963,
France was to "retain" certain Algerian establishments, while
Algeria was to "temporarily entrust the management of certain
establishments" to a Joint Scientific Research Council (article 1
of the Protocol).
Succession of States in respect of matters other than treaties
the property of the State in public establishments,
(b) automatic but limited succession to the property of
establishments situated in the territory affected by the
change of sovereignty, (c) succession on condition of
purchase, and (d) temporary retention of such property
by the predecessor State.
(2) It would seem, however, that this indicates, not that
the principle of succession is set aside, but merely that
its practical application is subject to certain restrictions
in treaties. Even when two States decide to deviate from
the principle, such action is also a way of recognizing
its existence: the High Contracting Parties "agree to
replace the property settlement based on the nature of the
appurtenances * by a global settlement based on equity
and satisfying their respective needs". 258
A.
Automatic and complete succession
(3) In 1871, Germany took over the rights and property
belonging to France in respect of the part of the railway
network of the Compagnie de VEst situated in AlsaceLorraine. 259 Bismarck had in fact decided, after the
conclusion of the Treaty of Peace of Frankfurt dated
10 May 1871, 260 to retain the lines in Alsace-Lorraine
as property of the State. Since France protested against
that decision, Germany consented to pay compensation,
but the completely fictitious nature of the latter leads
to the conclusion that this was a concealed case of automatic and complete succession. Furthermore, it was the
company and not France that had been compensated.
France had repurchased its rights from the company
in order to give them to Germany.
63
belonging to the network in Alsace-Lorraine as an accessory of
the soil of Alsace-Lorraine, a kind of rolling public domain belonging
to the soil by virtue of a kind of right of succession *.261> 262
(6) Under the Treaty of Peace with Italy of 10 February
1947 (annex X, para. 1), "the Free Territory of Trieste
[received], without payment, Italian State and parastatal property * within the Free Territory". 263 The
following were considered as State or para-statal property:
"movable and immovable property of the Italian State,
of local authorities and of public institutions and publicly
owned companies and associations, as well as movable
and immovable property formerly belonging to the
Fascist Party or its auxiliary organizations". 264
(7) The Treaty of Peace between the USSR and Finland
dated 12 March 1940, which provided for reciprocal
territorial cessions between those two countries, included
an annexed protocol under which various kinds of property of economic and military importance (including
manufacturing enterprises, telegraph and electric power
stations, aerodromes and warehouses), were required to
be handed over intact by each party to the other. 265
(8) After its restoration in 1918, Poland expected to
regain all the Russian, German and Austro-Hungarian
property situated in the territories in which it had been
re-established. This is a case which goes beyond automatic succession without payment to the property of
the State in public enterprises or enterprises of public
261
Peace Conference (1919-1920), Recueil des actes de la Conference de la paix (Paris, Imprimerie Nationale, 1922), part IV
(Commissions of the Conference), B (General questions), (5)
Commission for the International Regime for Ports, Waterways
(4) The Treaty of Frankfurt contained in fact three and Railways, meeting of 21 March 1919, extracts from the records
additional articles, two of which related to the problem No. 14, p. 122.
262 « ^ / r Annitage Smith (British Empire): ... The peace
of the lines of the Compagnie de l'Est. The German
would stipulate that Germany's public domain
Empire required France to repurchase the concessions preliminaries
should be ceded without payment. The allies would then consider
granted to the company in Alsace-Lorraine, and was whether the value of that domain should be deducted from the
required in exchange to pay France a lump sum which compensation to be made to the cessionary States.
"Mr. Sergent (France) :... If the cessionary State allowed the
it merely deducted from the war reparations that it
had exacted from France (325 million out of 5,000 million value of-this domain to be deducted from its claim against Germany,
its claim will be diminished. In the case of Alsace-Lorraine, since
gold francs).
Germany had seized^ French public property without compensation t
in 1871, the proposed method would mean that France was made
(5) When France regained Alsace-Lorraine from Germany to pay for State property which had been taken from it by force.
"Mr. Montague (British Empire) Suggested specifying that the
after the First World War, there was an automatic and
public domain would be transferred without payment
complete succession, considered to be restitution exclusive German
to the cessionary State and that the Allies would decide later how
of any compensation. France regained not only the allowance should be made for this.
railway network in the East, but also all the rolling-stock
"Mr. Sergent (France) said that France could not pay the Allies
after its representative had declared at the Peace Confe- for something it received without payment from Germany." {Ibid.,
(6) Financial Commission, First Sub-Commission, meeting of
rence that the question was
21 March 1919, extract from the records, No. 4, pp. 130-131.
See also the reasons given for the judgement by the French
purely a question relating to a territorial cession and in no way a
question of compensation. France reclaims the rolling-stock Court of Cassation in Compagnie des chemins de fer d'Alsace et
de Lorraine v. Ducreux (Cour de Cassation franchise, Chambre
civile, judgement of 11 July 1928 (Dalloz, Recueil hebdomadaire
268
Article 31 of the Franco-Malagasy agreement of 27 June 1960 de jurisprudence, annee 1928 (Paris, Dalloz), p. 512)).
263
concerning economic and financial co-operation (approved in
Treaty of Peace with Italy signed at Paris on 10 February 1947
Madagascar by an Act of 5 July 1960 and in France by an Act (United Nations, Treaty Series, vol. 48, p. 209).
264
of 18 July 1960). (See France, Journal officiel de la Ripublique
Ibid. See also annex XIV ("Economic and Financial Provisions
francaise, Lois et decrets (Paris), 20 July 1960, 92nd year, N o . 167, relating to Ceded Territories") {ibid., p. 225), where provisions
p. 6615.)
identical to those relating to the Territory of Trieste are set forth
269
This case of partial transfer of territory does not appear for States successors of Italy in other territories.
265
to have involved the situation considered in article 10 relating
British and Foreign State Papers 1940-1942, vol. 144 (London,
solely to rights in respect of the authority to grant concessions.
H.M. Stationery office, 1952), p. 383. See also I. Paenson, op. tit.,
260
p. 105.
F o r reference, see above note 125.
64
Yearbook of the International Law Commission, 1973, vol. II
utility, since Poland expected to recover even private
property. 266
(9) The Treaty of Peace signed at Bucharest on 7 May
1918 between the Central Powers and Romania, 267
stipulates in article 12 that all State property (Staatsvermogen) of the ceded Romanian territories shall pass
to the successor States free and clear of any compensation
or costs.
(10) Under United Nations General Assembly resolution 388 (V) of 15 December 1950 concerning the economic and financial provisions relating to Libya, that
country was to receive, "without payment, the movable
and immovable property located in Libya owned by the
Italian State, either in its own name or in the name of
the Italian administration of Libya". Article 1, paragraph 2, of that resolution provided for the transfer,
immediately and without payment, of the public property
of the State ("demanio pubblico"), the inalienable
property of the State ("patrimonio indisponibile"), as
well as the property of the Fascist organizations. Paragraph 3 of the same article provided, in addition, that
the following shall be transferred on conditions to be established
by special agreement between Italy and Libya: (a) the alienable
property (patrimonio disponibile) of the State in Libya and the
property in Libya belonging to the autonomous agencies (aziende
autonome) of the State ;* (b) the rights of the State in the capital
and the property of institutions, companies and associations of a
public character located in Libya *.
It is known that the United Nations Tribunal had to
settle this problem of the transfer of public property
to the successor State, particularly State property in
organizations of a public or semi-public character.
(11) By and large the same provisions were applied in the
case of Eritrea which, under General Assembly resolution
530 (VI), succeeded, automatically and without payment,
to the property of the "demanio pubblico", the "patrimonio disponibile" and "indisponibile", of the Fascist
Party and its organizations, and the following "aziende
autonome": the railway of Eritrea ("Ferrovie delPEritrea"),
the "Azienda Speciale Approvigionamenti", "the Azienda
Miniere Africa Orientale" (AMAO), and the "Azienda
Autonoma Strade Statali" (AASS), as well as to the
"rights of the Italian State in the form of shares and
similar rights in the capital of institutions, companies and
associations of a public character *" 268 (which have their
head offices in Eritrea).
(12) Algeria was to succeed to the property of the French
State in the public bodies in Algeria: "Public establish266
See third report (Yearbook...l970, vol. II, p. 131, document
A/CN.4/226), and the abundant decisions of the Polish Supreme
Court. According to a judgement of that Court (Co-operative
farmers in Tarnow v. Polish Treasury, 1923), the Polish State had
taken over the Austrian State Railways by taking over supreme
power in the territory in question, that is, by an act of public law
(see Yearbook...l963,
vol. II, p. 143, document A/CN.4/157,
para. 434).
267
De Martens, ed., Nouveau Recueilgeneralde traites (Leipzig,
Weicher, 1921), 3rd Series, vol. X, p. 856.
268
General Assembly resolution 530 (VI) of 29 January 1952,
"Economic and financial provisions relating to Eritrea", article I.
This resolution is much more detailed than resolution 388 (V)
relating to Libya.
ments of the [French] State or companies belonging to
the [French] State and responsible for the administration
of Algerian public services, will be transferred to
Algeria." 269 In fact, the application of the principle has
given rise to various difficulties.270
B.
Succession limited to the property of public establishments situated in the territory
(13) The examples cited above concerning automatic
succession, without payment, to all the property of the
State that might be included in the patrimony of public
establishments, or their equivalent, include some instances
in which the succession has been expressly limited to the
case where such property is situated in the territory
affected by the change of sovereignty.
(14) Thus, neither Libya nor Eritrea were able to succeed
to the property of the Italian State in public establishments
when such property was situated—or the operations
relating to it were carried on—outside Eritrea or Libya.
As stated in General Assembly resolution 388 (V),
where the operations of such institutions, companies and associations extend to Italy or to countries other than Libya, Libya
shall receive only those rights of the Italian State or the Italian
administration which appertain to the operations in Libya *. In
cases where the Italian State or the Italian administration of
Libya exercised only managerial control over such institutions,
companies and associations, Libya shall have no claim to any
rights in those institutions, companies or associations.271
(15) Similar or parallel provisions are found in devolution
agreements. Article 19, of the Declaration of Principles
concerning Economic and Financial Co-operation between Algeria and France provides that the transfer of
public establishments of the French State "will cover
the assets applied in Algeria * to the management of
these public services".
C.
Succession on condition of purchase
(16) When the French Establishments in India were taken
over by the Indian Union, it was decided that "the French
Government will place a power station at the disposal
269
Article 19 of the "Declaration of Principles concerning
Economic and Financial Co-operation" (for reference, see above
note 256), of 19 March 1962. The fact that this article, even though
it refers to a future agreement, makes no reference to whether
this transfer was to be made against payment, should be interpreted
as excluding any compensation or repurchase.
270
See G. Fouilloux, "La succession des Etats de l'Afrique
du Nord aux biens publics francais", Annuaire de l'Afrique du
Nord, 1966 (Paris), vol. V, 1967, pp. 51-79. Following the occupation
on 18 October 1962 by the French Army of the administrative
district of Rocher Noir, constructed on land acquired by a public
establishment, the CEDA (Caisse d'equipement et de deyeloppement
de l'Algerie)), the Algerian side replied by stepping up its take-over
of various public establishments, including Radio Algiers. The
transfer to Algeria of the patrimonial aspects of the various public
bodies took place progressively, following long, complex negotiations
and often on condition of purchase or against compensation.
271
Article I, para. 4, of resolution 388 (V). This paragraph
was reproduced in full in article I, paragraph 2 ( / ) of resolution 530
(VI) quoted earlier in the case of Eritrea.
Succession of States in respect of matters other than treaties
65
of the Government of India. The conditions of the purchase
shall be examined by the competent authorities." 272
is of illusory value, either because the new State does not possess
the necessary financial means, or, above all, because it tends to
give rise to a dispute that is not conducive to co-operation *.276
(17) When France withdrew from Lebanon, the latter
purchased from the former, on a lump-sum basis, property of the French State in public establishments in
Lebanon, such as the telephone system, the Beirut
broadcasting station and the flying control radio stations
and meteorological stations. 273
Such a dispute is a clear indication of the argument
against the merits of a possible rule stating that transfers
must be made against payment.
(18) The protocol of 24 September 1962 concerning
technical co-operation between France and Algeria in
the field of public works, transport and tourism 274
provides for the transfer of State property forming part
of the patrimony of various public establishments. In
particular, article 1 of the protocol provides that, "As
from 1 July 1962, Algeria shall supersede France in
respect of the rights and obligations attaching to the
general property of the railway system" while France
undertakes to "transfer" to Algeria the shares it held in
the Societe nationale des chemins de fer algeriens
(SNCFA). That was effected against payment, as in
the case of other public bodies, such as Electricity et Gaz
d'Algerie (EGA), Air-Algerie, and Caisse d'equipement
et de developpement de l'Algerie (CEDA), the property
of which was to be transferred to the equivalent new
Algerian body, the Caisse algerienne de developpement
(CAD), etc. 275
(19) It would appear that the few examples mentioned
briefly above should not be used as the basis for the
formulation of rules, since that was not their purpose.
Despite their relatively frequent occurrence, these examples
are the product of varying circumstances of time and
place, and this makes it hazardous to attempt to formulate
any rule based on them.
It might in addition be pointed out that the transfer
against payment was justified at times by the fact that,
in the context of co-operation, the successor State and
the predecessor State each undertook an evaluation of
the property which it abandoned to the other. Reciprocal
cessions had to be calculated for the purposes of compensation.
It should also be noted that, at least as far as decolonization is concerned, the purchase is sometimes more
theoretical than real. "Payment for the succession to
property", writes Mr. Gerard Fouilloux,
Finally, it is worth while pointing out that the payment
of compensation or lump sums stipulated by various
agreements relating to territorial cessions in Europe in
the eighteenth and nineteenth centuries was sometimes
intended, according to one writer,277 to replace "in a
way the system which would impose on the acquiring
State the obligation to assume responsibility for part of
the public debt relating to those territories".
D.
Temporary use of property by the predecessor State
(20) It has happened that a predecessor State has been
authorized to retain temporarily the use of public property,
particularly for the purpose of establishing or administering services to implement a policy of technical or
cultural co-operation with the successor State. Obviosuly,
the fact that such property remains temporarily at the
disposal of the predecessor State cannot constitute grounds
for formulating a rule contrary to that suggested by the
Special Rapporteur. It is mainly in the context of cultural
co-operation that a number of public educational,
research and cultural establishments have thus been
retained provisionally by the predecessor State with the
express agreement of the successor State. Furthermore,
the very existence of such an agreement clearly proves
that the successor State has a right to succeed to such
property, without which it would have no capacity to
assign the property referred to in the agreement.
(21) On the basis of these commentaries, it would seem
possible to accept the rule suggested by the Special
Rapporteur in draft article 34. It should be applicable
without difficulty in the cases of partial transfer of territory, the newly independent State, and the separation
or secession of territory. It is clearly not in doubt in the
case of the disappearance of the predecessor State by
absorption or partition. In that case, the rule applies
by reason of the sheer impossibility of leaving a patrimony
to a State that no longer exists. There remain the cases
of the uniting of States and the dissolution of a union of
States. For the purposes of the latter case it might
appear necessary or useful for the Commission to effect
some slight change or introduce some special provision in
the proposed article. It may in fact be considered normal
for a predecessor State to retain the property that it
possesses in a public establishment in the case of a
uniting of States. There again, however, it is all a question
of the nature and degree of integration of the States in
the union, and hence of treaty provisions.
272
Article XXII of the Franco-Indian Agreement of 21 October
1954 (for reference, see above, note 115). T h e compensation for
the purchase of this power station was fixed by a joint commission
at 21.65 lakhs.
273
Agreement between France a n d Lebanon concerning monetary
and financial relations between the two countries, signed at Paris
on 24 January 1948 (United Nations, Treaty Series, vol. 173, p . 99),
article 8, paras. 3, 4 a n d 5.
Article 35. Case of two or more successor States
274
Algeria, Journal officiel de la Republique algerienne, Ordonnances (Algiers), 24 September 1962, First year, N o . 19, p . 3 1 1 ; Where there are two or more successor States, the
and France, Journal officiel de la Republique francaise, Lois et patrimonial rights of the predecessor State in public
decrets (Paris), 6 October 1962, 94th year, N o . 236, p . 9660.
275
F o r the purchase of property of the Bank of Algeria, a n
276
G . Fouilloux, loc. cit., p . 78.
institution of issue, see also Yearbook...1971, vol. I I (Part One),
277
p. 182, document A/CN.4/247 a n d A d d . l , part two, third subJ. T. N. Dimitriu, Le regime des biens d'Etat dans les traites
paragraph of para. 14 of the commentary to article 7.
(thesis) (Paris, Les presses modernes, 1927), p. 38.
66
Yearbook of the International Law Commission, 1973, vol. II
establishments situated in the transferred territories shall
be apportioned between the successor States in accordance
with the criteria of geographical location, origin of the
property and the viability of the said establishments, and
subject, where necessary, to equalization payments and
offset.
COMMENTARY
(1) When Algeria became independent, there arose the
problem of disposal of the property of the MediterraneanNiger Railway, in which several countries were involved.
In a Franco-Algerian Protocol it was decided provisionally
at that time that "subject to the changes affecting the
public domain as a consequence of the transfer of sovereignty, the Mediterranean-Niger Railway shall continue
to be operated as a French public establishment* until
31 December 1962".278 Subsequently this establishment
was dissolved.
(2) It would seem inadvisable to go further than the
provisions of article 35 in defining the way in which the
patrimonial rights which the predecessor State possesses
in public establishments should be apportioned between
two or more successor States. The proposed criteria for
apportionment are such as to cover every eventuality.
However, contrary to the possible implications of the
case of the Mediterranean-Niger Railway, it is not for
the predecessor State to apportion the State property
between the various successor States. As Max Huber
writes in a book already quoted, 279 under public law,
as opposed to civil law, the successor itself gives effect
to the succession by taking possession of the property
involved. It is for the successor States to settle the question
among themselves.280
(3) The future of public establishments and bodies can
give rise to insuperable problems when there are two or
more successor States if the criteria referred to above and
the interests of each party are not carefully taken into
account. The apportionment of property may well deprive
the establishment of what is fundamental to its existence,
and must therefore also take into account the criterion
of viability of the establishment.
(4) As an appendix to these commentaries, it might
perhaps be appropriate to consider, in this context, the
case of two or more third States, which is obviously
different from the case of two or more successor States,
dealt with here. The former occurs when, particularly
in the case of decolonization, the predecessor State has
set up a public establishment which is common to two
278
Article 10 of the Protocol of 24 September 1962 (for reference
see above note 274).
279
See above note 109.
280
With reference to the apportionment of railway networks
in Central Europe and their administrative and technical reorganization, see the case of the Barcs-Pakrac Railway (United Nations,
Reports of International Arbitral Awards, vol. I l l (United Nations
publication, Sales N o . 1949.V.2), p. 1569), the case of the SopronKoszeg Railway {ibid., vol. II, United Nations publication, Sales
No. 1949.V.I), p. 961; and Revue generale de droit international
public (Paris), 3rd series, vol. IV, 1930, pp. 324-334), and the case
of the Zeltweg-Wolfsberg and Unterdrauburg-Woellan railways
(United Nations, Reports of International Arbitral Awards, vol. I l l
(op. cit.), p . 1795.
or more neighbouring countries, but with the headquarters
and most of the patrimony or activity situated in the
territory which has become independent. A case in point
is the Djibouti-Addis Ababa Railway. The patrimony of
the colonial Power in the public establishment must be
the subject of a plan for apportionment which takes
into account the size of the share in the establishment held
by each State. The problem can be solved only through
treaty provisions stating that the successor State shall
grant to third States compensation in proportion to their
share, or, better still, providing for economic co-operation
between all the States involved.
VI. PROVISIONS CONCERNING
TERRITORIAL AUTHORITIES
Article 36. Definition of territorial authorities
Version A:
For the purposes of the present articles, "territorial
authority" means any administrative division of the territory of a State.
Version B:
For the purposes of the present articles, "territorial
authority" means any administrative division of the
territory of a State which is characterized by its own
territory, population and administrative authority but does
not possess international legal personality.
COMMENTARY
(1) The Special Rapporteur suggests two different
versions for the definition of territorial authorities, one
being an extension of the other. The first version merely
defines them as simple administrative divisions. The second
provides a somewhat negative definition: anything which
is not a State, although it has a territory, a population
and authority, can only be a territorial authority.
(2) International law does not provide a definition of a
subject of municipal law. Territorial authorities, municipalities, districts, cantons, arrondissements, provinces,
regions and even federated States—have legal personality,
but only in the internal juridical order of a unitary or
federal State. They are not subjects of international law.
(3) The Special Rapporteur could have referred to the
municipal law of a State in order to define territorial
authorities. However, even if such a definition existed
and it was possible and desirable to give a rule of municipal
law the force of a rule of international law, such a solution
would be unsatisfactory because the nature and role
of territorial authorities and the law governing them vary
considerably from one State to another.
(4) International lawyers have approached the problem
of defining "property of municipalities", and therefore
indirectly that of defining municipalities, in the context
of the law of war, and particularly of the Hague Conventions of 1907. They have considered the question of the
treatment of municipal property in the case of foreign
Succession of States in respect of matters other than treaties
military occupation. However, they differ in their interpretation of the meaning to be attributed to the term
"property of municipalities".281 Some feel that, under the
Hague Convention, the same regime was to be applied to
the property of municipalities and that of the State.282
Others considered that the distinction between the property
of municipalities and State property is not realistic and
proposed criteria for determining the patrimony of the
State.283 Max Huber, faced with the difficulty of denning
the patrimony of the State and that of what he calls
"independent establishments", proposes two criteria:
one of form concerning the legal personality of the
holder of the patrimony, and the other of substance
covering the purpose for which the patrimony is to be
used. If there is any doubt, according to the author,
the existence of a legal personality separate from the
State must be acknowledged provided that the following
three elements are present:
(a) A body legally independent of the administrative organs of
the State;
(b) The capacity to possess rights and property;
(c) A different purpose [from that of the State].284
(5) Other writers believe that the regime applicable under
the Hague Convention to "the property of municipalities"—which allows such property to be assimilated
to private property for the purposes of protection—also
applies to the property of all other territorial authorities,
the deciding factor being that the property concerned
meets purely local needs.285
These different interpretations, formed in the context
of the law of war, do not allow for a precise definition
of territorial authorities. Consequently, the Special
Rapporteur would prefer one or the other of the two
versions he proposes.
Article 37. Public property
proper to territorial authorities
Version A
The change of sovereignty shall leave intact the ownership of the patrimonial property, rights and interests
proper to territorial authorities.
Version B
The change of sovereignty shall leave intact the owner
ship of patrimonial property, rights and interests proper to
territorial authorities, which shall be incorporated, in the
same manner as the said authorities themselves, in the
juridical order of the successor State.
381
See O. Debbasch, L'Occupation
militaire — Pouvoirs
reconnus aux forces armies hors de leur territoire national (Paris,
Librairie g6n£rale de droit et de jurisprudence, 1962), pp. 29-30.
282
W. M. Franklin, "Municipal property under belligerent
occupation", American Journal of International Law (Washington,
D.C.), vol. 38, N o . 3, July 1944, pp. 304 et seq.
283
M. Huber, "La proprie'te publique...", Revue generate...
(loc. cit.), pp. 680 et seq.
284
Ibid., p. 682.
285
A. Rolin, Le droit moderne de guerre (Brussels, Dewit, 1920),
vol. I, pp. 540 et seq.
67
COMMENTARY
(1) In draft article 8 relating to the "General treatment
of public property according to ownership", the Special
Rapporteur has inserted a subparagraph (b) reading thus:
"Public property of authorities or bodies other than
States shall pass within the juridical order of the successor
State".
His commentaries on this article, to which he now
refers the reader, allow him to be brief here.
(2) It will be recalled that a resolution adopted by the
Institute of International Law in 1952, at its Siena session,
stated that local corporate bodies retained the right of
ownership over their property after territorial changes.286
It is also known that the regime of public property
belonging to local authorities themselves was the subject,
in particular, of a decision by the Franco-Italian Conciliation Commission on 9 October 1953.287 The Commission
had to adjudicate upon the fate of property of the frontier
municipalities whose areas had been divided by the
new frontier established by the Treaty of Peace with
Italy of 10 February 1947.
(3) The agent of the French Government considered that
the para-statal property transferred to the successor
State under paragraph 1, sub-paragraph 2 of annex XIV to
the Treaty included the property of local authorities.
In the view of Italy, on the contrary, the paragraph
referred not to a real transfer of property but to the
property's incorporation in the juridical order of the
successor State.
The Commission for its part stated that
apportionment cannot, as a rule, change the nature of existing
rights; it is, however understood that those rights will henceforth,
if necessary, be exercised in the context of the French municipal
juridical order instead of in the context of the Italian municipal
juridical order, and vice versa. The property which belonged to
Italian municipalities themselves shall normally, if it is allotted to
them at the time of the apportionment, be allocated to them in
full ownership, even if henceforth the property is situated in
French territory; similarly, property in Italian territory allotted
to municipalities which were formerly Italian and are now French
must remain in the ownership of those municipalities, if it belonged
to the municipality itself before the entry into force of the Treaty
of Peace.388
(4) However, the Commission based its views on the
clear wording of the treaty when it decided that
it is the successor State that shall receive, without payment, not
only the State property but also the para-statal property, including
municipal property, within the territories ceded. It is the municipal
legislation of the successor State that must determine the fate
(final destination and juridical regime) of the property thus
transferred, in the new State context into which the property has
passed following the cession of the territory.28*
(5) It is true that this is a treaty provision, which stipulates unequivocally that the ownership of the property
286
See above, para. 7 of the commentary to article 8.
See above, note 40.
288
United Nations, Reports of International Arbitral Awards,
vol. XIII (United Nations publication, Sales N o . 64.V.3),
pp. 520-521.
289
Ibid... pp. 514-515.
287
68
Yearbook of the International Law Commission, 1973, vol. II
of municipalities shall be transferred to the successor
State. But the normal solution can only be that in the
case of the transfer of territory the territorial authorities
retain the right of ownership over their own property,
If the successor State subsequently modifies the substance
of that right, it will do so by an act of public power as a
sovereign State, not as a successor State. That situation
falls outside the scope of the succession of States.
On the other hand, however, succession to the property
of local authorities raises the problem of succession to
legislation, which will be studied by the International
Law Commission at a later stage. Such property henceforth is incorporated in a juridical order different from
the order to which it formerly belonged. Its juridical
regime may therefore remain the same or on the contrary
evolve according to the conditions governing the transition
from the legislation of the predecessor State to that of the
successor State.
It would seem that this rule is valid for all types of
succession of States except the uniting of States. In the
latter case, the normal procedure would appear to be
the maintenance of the status quo, unless a contrary
decision is taken by agreement. The Commission must
decide whether it should deal with this case separately
or redraft the article in order to take it into account.
(2) If there are two or more successor States, the property
of the predecessor State in the patrimony of territorial
authorities will be apportioned justly and equitably
among the successor States. The criteria for apportionment
(viability, geographical location, origin of the property,
equalization payments and offset) will be defined in
greater detail during the consideration of article 39,
which covers the problem of territorial authorities divided
following transfers of territory.
Article 39. Divided territorial authorities
(6) One writer has observed that
the treaties between the Reich and the Protectorate of BohemiaMoravia, Slovakia and Hungary, all stipulated that the property
of local authorities, in so far as the territory of the latter was not
divided under the territorial cessions granted by Czechoslovakia,
was to remain intact.290
However, despite the exception presented by the division
of property of local authorities between Romania and
Bulgaria, 291 treaty practice also shows that the right of
ownership of territorial authorities is left intact.
Where the change of sovereignty has the effect of
dividing a territorial authority into two or more parts
attached to two or more successor States, the patrimonial
property, rights and interests of the territorial authority
shall be apportioned equitably between the said parts, due
regard being had to the viability of the latter, to the geographical location and origin of the property, and subject,
where necessary, to equalization payments and offset.
COMMENTARY
Article 38. Property of the State
in territorial authorities
1. The share of the predecessor State in the property,
rights and interests of a territorial authority shall be
transferred ipso jure to the successor State.
2. Where there are two or more successor States, the
said share shall be apportioned between them, with due
regard to the viability of the territorial authority, to the
geographical location and origin of the property, and
subject, where necessary, to equalization payments and
offset.
COMMENTARY
(1) Article 38 corresponds to article 34, which concerns
property of the State in public establishments. In other
words, it puts forward an identical solution to basically
similar concerns. The property owned by the predecessor
State in a territorial authority or in an enterprise of the
authority has the same fate as other public property
which constitutes the patrimony of the State and must
therefore be transferred to the successor State.
290
I. Paenson, op. cit., p. 111. Convention of 4 October 1941
between the Third Reich and the Protectorate of Bohemia-Moravia
(Reichsgesetzblatt, Teil II, Berlin, 24 April 1942, N o . 13, p . 195);
Agreement of 13 April 1940 between the Third Reich and Slovakia
(ibid., 20 August 1941, N o . 34, p. 305); Agreement of 21 May 1940
between the Third Reich and Hungary (ibid., 6 June 1941, N o . 23,
p. 199).
291
Romania ceded property of local authorities to Bulgaria
on the same basis as State property, in the Treaty of Craiova of
7 September 1940.
(1) The Franco-Italian Conciliation Commission based
its decision of 9 October 1953 (which has already 292 been
mentioned on paragraph 18, of annex XIV to the Treaty
of Peace with Italy, which provided that the property
of municipalities whose areas were divided should be
"equitably apportioned" among those municipalities.293
This case concerns the apportionment of municipal
property between a predecessor State and a successor
State, not among several successor States. However,
the solutions remain the same and the suggested article 39
could just as well apply to the case of a change of sovereignty which would have the effect of dividing a territorial
authority into two or more parts, one part being retained
in the predecessor State, if it still exists, and the other
part or parts being attached to one more successor
States.
(2) The Conciliation Commission stated that the apportionment of such property must be carried out within
the context of each former municipality. On the basis of
the text of the Treaty of Peace of 1947, it formulated
certain principles. Paragraph 18, of annex XIV to the
Treaty of Peace provided for apportionment by agreement
between the successor States. That apportionment must
be just and equitable. Moreover, it must ensure the
maintenance of the municipal services necessary to the
inhabitants. It must therefore be carried out according to
a principle of utility. The Commission stressed that the
interest of the population must be the governing factor
292
293
See above note 40.
United Nations, Treaty Series, vol. 49, p. 229.
69
Succession of States in respect of matters other than treaties
in the apportionment of the property belonging to the
divided municipalities. The Commission was, of course,
alluding to the population of the dismembered municipality,
not the population of the municipality whose area has
been expended by the annexation.
2. Where the predecessor State possessed a share in
the patrimony of a foundation, that share shall be transferred to the successor State, or where there are two or
more successor States, apportioned equitably between them.
(3) The Commission gave a definition of the "municipal
services necessary to the inhabitants" referred to in
annex XIV, paragraph 18: " . . . a set of facilities which
by their use, their nature or their location, exert a decisive
influence on local life *". Moreover, in this case of modification of the frontier " . . . the essential characteristic of
a public service in this instance is the link between possession
by the municipality of the property in question and the
fulfilment, by means of such possession, of the economic,
social or family needs of the inhabitants*; the type of use
is irrelevant; the degree of directness of the link in question
is also irrelevant.". 294
COMMENTARY
(4) On the basis of this decision by the Franco-Italian
Conciliation Commission it can therefore be concluded
that the apportionment of the property of territorial
authorities whose areas are divided must:
(a) Be carried out in a spirit of justice and equity;
(b) Take account of the economic, geographical,
social and demographic conditions of those territorial
authorities, as well as of the nature and location of the
property;
(c) Safeguard the interest of the public service in the
widest sense;
(d) If necessary, include compensation in kind or
cash, assessed according to the needs of the population.
However, in the present case, the Commission did not
deem it necessary to establish an apportionment account.
(5) The principle of taking account of conditions of
viability was also applied at the time of the division of
the canton of Basle into two half cantons, pursuant
to a decision by the Federal Diet in 1833. The arbitral
tribunal presided over by Professor Keller assessed the
administrative and fiscal wealth of the State and apportioned it between the two half cantons with due
regard to population density. 285
(6) Similarly, examples
provide for a just and
property of territorial
been divided are to be
already mentioned.
VII.
of conventions which always
equitable apportionment of the
authorities whoses areas have
found in the book by Paenson
PROPERTY OF FOUNDATIONS
Article 40. Property of foundations
1. So far as the public policy of the successor State
permits, the legal status of the property of religious,
charitable or cultural foundations shall not be affected by
the change of sovereignty.
294
United Nations, Reports of International
vol. XIII (op. cit.), p. 520.
295
P. Guggenheim, op. cit., p. 467.
Arbitral
Awards,
(1) The property of religious, charitable, cultural or
scientific foundations has been the subject of special
provisions in many agreements relating to State succession,
as well as of a relatively large number of judicial decisions.
Certain principles can therefore be derived from international practice and from judicial practice.
The article suggested above raises three aspects of the
question of foundations: (i) respect for private foundations which in principle retain their property without any
change; (ii) possible involvement of the concept of
public policy, which may lead the successor State to
infringe upon respect for the status quo; and (iii) transfer
to the successor State or States of the property owned by
the predecessor State in the patrimony of a foundation.
A. Patrimonial situation unchanged
(2) The Austro-Bavarian Convention of 3 June 1814,296
the Treaty of 20 May 1815 between the King of Sardinia,
Austria, England, Russia, Prussia and France, 297 the
Treaty of 18 May 1815 between Prussia and Saxony, 298
and the Act of the Congress of Vienna a 9 9 provided that
the foundations or communities, corporations and religious or public educational establishments in the provinces
and districts ceded should retain their property as well
as the income they possessed in accordance with the act
of foundation or with acquisitions legally made by them.
Article XV of the Additional Treaty relating to Cracow,
signed at Vienna on 21 April-3 May 1815 by Austria,
Prussia and Russia read:
The Cracow Academy is confirmed in its privileges and in the
ownership of the buildings and the library appertaining to it, as
well as of the amounts it owns in land or in mortgaged capital.300
It would be possible to cite
of diplomatic texts of the
territorial changes have had
with regard to the patrimony
in this manner a multitude
same type, showing that
no effect on the situation
of foundations.
(3) Property known as "dedicated" in Moslem law, 301
which is withheld from trade and from the process of
inheritance, and thus becomes inalienable and imprescriptible on religious grounds, is assigned by its owners
295
Article I X of the Convention signed at Paris on 3 June 1814
between Austria and Bavaria.G.F. de Martens, ed., Nouveau Recueil
general de traites (Gottingen, Dieterich, 1887), vol. II (1814-1815)
(reprint), p. 18.
297
Annex to article VII and annex to article IV of the Treaty
of 20 May 1815 (ibid., p. 298).
298
Article XVI of the Treaty of 18 May 1815 (ibid., p. 272).
299
Article X X I of the Act of the Congress of Vienna of 9 June
1815 (ibid., p. 379).
300
Ibid., p. 256.
301
The property known as "haboi/s" or "waqf" (or the Arabic
plural of this word, "awqa~f", transcribed into French in various
forms, in particular as "vakoiif" in a number of diplomatic texts).
See Yearbook...1970,
vol. II, p. 138, document A/CN.4/226,
(Continued on next page.)
70
Yearbook of the International Law Commission, 1973, vol. II
to a religious, social assistance, charitable or other
work or purpose of public utility.
Under article XII of the Treaty of Constantinople
between Turkey and Bulgaria the problem of such
property was settled by maintaining the status quo:
The Mustesna, Mulhaka, Idjaretein, Moukataa and Idjareivahide vakoufs as well as vakouf tithes in the ceded territories, as
specified under current Ottoman law, shall be respected *.
They shall be managed by duly authorized persons.
The regimes to which they are subject may be modified only if
fair prior compensation is paid.
The rights of the religious and benevolent establishments of the
Ottoman Empire to vakouf income in the ceded territories, derived
from idjarei-vahide, moukataa, miscellaneous titles and the equivalent value of vakouf and other tithes, on vakoufs whether built or
not, shall be respected *.302
(4) When France annexed Nice and Savoy, article 7 of
the Franco-Sardinian Convention of 23 August I860, 303
in principle settled the problem of the property of churches
and religious congregations by maintaining the status
quo. However, difficulties arose, especially after the
passage of the French Act of 9 December 1905 separating
church and State. Even after the adoption of this Act,
however, France retained the system of scholarships
and cartelli. The church scholarships were provided for
poor schoolchildren, and French legislation agreed to
continue payment of them. 304 The French Government
also continued to pay ecclesiastical stipends, in particular
the cartelli, which were a perpetual annuity paid regularly
by the Sardinian Government to ministers of religion,
despite the affirmation of the Act of Separation of 1905
that "the Republic. . . shall not give financial support
to any religion". 305
(5) Similarly, we read in the Convention between the
United States and Denmark providing for the cession
of the Danish West Indies that "The congregations
belonging to the Danish national Church shall retain
the undisturbed use of the churches which are now used
(Foot-note 301 continued)
part two, commentary to article 1 and notes 22 and 23. This type
of property was discussed a great deal following the various dismemberments of the Ottoman Empire, the mandates and Capitulations in the Middle East, and the colonization or establishment
of protectorates in North Africa with regard to France or Italy.
302
G. F . de Martens, ed. Nouveau Recueil general de traites
(Leipzig, Weicher, 1915), 3rd series, vol. VIII, p. 78. Article VIII
of annex 2 to the same treaty gives more details on the management
of such property by the Moslem community, on cemeteries and
mosques and on expropriation procedures in cases of overriding
necessity and in the event of demolition. See also article XII of
the Greco-Turkish Convention signed on 1-14 November 1913,
which respects the vakouf property of certain "tekkes, mosques,
madrasahs, schools, hospitals, and other religious or benevolent
institutions", but applies various restrictions {ibid., pp. 97-98).
303
G. F . de Martens, ed., Nouveau Recueil general de traites
(Gottingen, Dieterich, 1869), vol. XVII, part II, p. 22.
304
Cf. Ch. Rousseau (op. cit., p. 169), who quotes the concordant
rulings of the Court of Cassation (22 July 1914) and the Council
of State (France, Conseil d'Etat, 19 July 1916, "Bourse des pauvres
ecoliers d'Annecy", Recueil des arrets du Conseil d'Etat (Paris,
1916), p. 188).
305
France, Bulletin des bis de la Republique francaise (Paris,
1905)1 Xllth series* vol. 71, No. 2663, p. 1697. See also Ch. Rousseau,
op. cit., p . 169.
by them, together with the personages appertaining
thereunto and other appurtenances, including the funds
allotted to the churches." 306
(6) The Franco-Indian Agreement of 21 October 1954
concerning the transfer of the French Establishments
in India to the Indian Union 307 affords another example.
Article IX of the Agreement reads :
Properties pertaining to worship or in use for cultural purposes
shall be in the ownership of the missions or of the institutions
entrusted by the French regulations at present in force with the
management of those properties.
The Government of India agree to recognise as legal corporate
bodies, with all due rights attached to such a qualification, the
"Conseils de fabrique" and the administration boards of the
Missions.
Article 32 of the same Agreement adds
. . . Properties which are at present in the possession of the
religious authorities shall be retained by them and the Government of India agree, whenever necessary, to convey the titles to
them.
(7) The Treaty of Peace with Italy of 10 February 1947, for
its part, provided that property belonging to Italian
religious bodies or private charitable institutions would
be exempt from any confiscation measures. 308
(8) In the case Bolshanin et al. v. Zlobin et ah, the District
Court of Alaska ruled in favour of the maintenance of the
property rights of religious foundations. Members of the
Russian Church at Sitka, Alaska, claimed ownership of
the church buildings and lands by virtue of the 1867
Treaty by which Russia ceded Alaska to the United
States. Article II of this treaty provided that "the churches
which have been built in the ceded territory by the Russian
Government, shall remain the property of such members
of the Greek Oriental Church resident in the territory,
as may choose to worship therein". The defendants,
the priest and the Metropolitan of the Greco-Russian
Church in America referred to a patent granted them by
the United States Government in 1914. The Court
judged that private titles granted by a former sovereign
were not affected by the change in sovereignty that had
taken place. 309
(9) In the Peter Pazmany University case, adjudicated
by the P.C.I.J., the same principles of respect for the
property of foundations were applied. 310 Article 250 of
the Treaty of Trianon followed the same direction,
providing that " . . . the property, rights and interests
of Hungarian nationals or companies controlled by them
308
End of article 2 of the Convention of 4 August 1916 (for
reference, see above, note 81).
307
For reference, see above, note 115.
308
Article 79, paragraph 6 (b) of the Treaty.
306
Case of Bolshanin et al. v. Zlobin et al., United States District
Court of Alaska, 27 May 1948 (American Journal of International
Law, 1948 (Washington, D.C.), vol. 42, N o . 3 (July 1948), p. 735,
quoted in Yearbook...l963, vol. II, p. 124, document A/CN.4/157,
paras. 255-257.
310
Judgement of 15 December 1933, "Appeal from a judgement
of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (The
Peter P&zmany University v. the State of Czechoslovakia), in
P.C.I.J., Series A/B, N o . 61, pp. 208-262. See Yearbook...l970,
vol. II, p. 140, document A/CN.4/226, part two, paras. 27-30 of
the commentary to article 1.
Succession of States in respect of matters other than treaties
situated in territories which formed part of the former
Austro-Hungarian Monarchy shall not be subject to
retention or liquidation . . . ". 311
The Hungaro-Czechoslovak Mixed Arbitral Tribunal,
in a judgement rendered on 3 February 1933, had stated
that under the terms of article 250, quoted above, the
Czechoslovak State should restore certain immovable
property to the Peter Pazmany University at Budapest.
Czechoslovakia appealed unsuccessfully to the P.C.I.J.,
which confirmed the first judgement.
The property in question had been donated to the
University in 1775 by Queen Maria-Theresa so that it
might "own, have and hold it as a perpetual endowment
and foundation". 312 The donation was confirmed when
the University was transferred to Buda and then to Pest
in 1804, and was converted into a title of ownership.
Another piece of land, the subject of the litigation, had
been purchased by the University in 1914. In 1918,
Czechoslovak troops invaded northern Hungary, and
the University property situated in Slovakia was seized
by the Czechoslovak State. It was placed under the
administration of the Central Commission for the
Property of the Roman Catholic Church in Slovakia.
The University then appealed to the Hungaro-Czechoslovak Mixed Arbitral Tribunal for restoration of its property. The Tribunal, confirmed in its judgement by the Permanent Court of International Justice, upheld the
University's claim. 313
71
The Court based its reasoning on the fact that, on the
one hand, the foundation concerned was not Algerian
but multinational, and on the other hand that what was
involved was not a public establishment reverting to
Algeria but a non-transferable private fund.
B.
Exceptions to the principle
(11) The final decision of the Special Commission of the
German Empire dated 25 February 1803, concerning the
settlement of compensation established under the peace
of Lundville provided, in paragraphs 35 and 37, that the
property of certain chapters, abbeys and convents should
be placed "at the free and complete disposal of the territorial
princes concerned * for expenses connected with worship,
instruction and other facilities for the public use and
also to ease their finances . . . " and that "the property
and income belonging to hospitals, church councils,
universities, colleges and other religious foundations...
shall be placed at the disposal of the rulers concerned *". 316
But this is almost certainly explained by the survival,
here and there, of mediaeval or feudal law which provided
for the free disposal of ecclesiastical property in Europe.
lawyer to protect a Moslem private foundation established for
Moslem pilgrims from the Maghreb was contracted neither in
the name of Algeria nor in the name of an Algerian public
establishment, and is therefore not transferred to the Algerian
State by article 18 of the Franco-Algerian Declaration of Principles
concerning Economic and Financial Co-operation of 19 March
1962.311
(12) The problem of the property belonging to the
churches of Savoy after the annexation of this formerly
Sardinian province by France in 1860 was dealt with
in a decision by the Conseil d'Etat in which this high
administrative court of France rejected the principle
of non-retroactivity of the law and made the churches
of Savoy subject to the same juridical regime as the other
churches of France. 316 These churches belonged to the
municipalities, which thus acquired the churches of
Savoy and their appurtenances which, according to
Sardinian law, belonged to the church councils and
parochial benefices and normally could be transferred
to the municipalities only by expropriation for public
purposes. 317 Subsequently the "ecclesiastical corporations"
(chapters, canonries, establishments for public worship,
lay chaplaincies and hospital institutions) were either
abolished or prevented from enjoying the property status
they had had prior to the annexation of Savoy. 318
311
(13) But the most celebrated case was the case of the
(10) A case adjudicated by the Paris Appeals Court,
concerning the "Waqf Abou Mediene" foundation,
relates to the problem of what should become of the
property of religious foundations. The Court ruled that
the commitment entered into by the French State with an Israeli
British and Foreign State Papers, 1920, vol. 113 (op. cit.),
hospitals of the English-speaking Protestant missions
p. 607.
312
in Madagascar. 319 The case known as the Soavinandriana
P.C.I.J., Series A/B, N o . 6 1 , p . 223.
313
Czechoslovakia h a d unsuccessfully invoked the provisions hospital case raised the question of general appropriation
of t h e sixth paragraph of article 249 of the Treaty of Trianon,
315
whereby "Legacies, donations a n d funds given or established in
G . F . de Martens, ed., Recueil desprincipaux traites, 2nd ed.,
the former Kingdom of Hungary for the benefit of nationals of revised a n d augmented (Gottingen, Dieterich, 1831), vol. V I I ,
that Kingdom shall be placed by Hungary, so far as the funds in p. 499.
question a r e in her territory, at the disposal of the Allied o r
316
Decision of the Conseil d'Etat dated 24 December 1896
Associated Power of which t h e persons in question a r e n o w , o r
(France,
Journal officiel de la Republique francaise, 29 January 1897).
become, under t h e provisions of the present Treaty... nationals"
317
See F . Grivaz, " L a question des eglises de Savoie et la thdorie
(British and Foreign State Papers, 1920, vol. 113 (op. cit.), p . 607).
Czechoslovakia also unsuccessfully invoked before the Court the des droits acquis, Revue generate de droit international public (Paris),
Paris Protocol of 26 April 1930 ( G . F . de Martens, ed., Nouveau vol. IV (1897), p p . 645-680. See also Louis Trotabas, Le droit public
Recueil general de traites (Leipzig, Buske, 1934), 3rd Series, dans I'annexation et le respect des droits acquis (thesis), Paris,
vol. X X I X , p . 356), which specified that "Each of the two contracting 1921, p p . 87-147.
318
States shall retain the legacies, donations a n d foundations of every
See C h . Rousseau, op. cit., p . 168 a n d references to the
kind existing in its territory". T h e Court could n o t have decided opinions a n d judgements of t h e Conseil d'Etat.
319
otherwise, since t h e Protocol stated that it should "in n o way
See Yearbook...l970, vol. I I , p p . 137-138, document A / C N . 4 /
affect the case which has been brought by the University of Buda- 226, part two, paragraph 18 of the commentary to article 1. T h e
pest before t h e Hungaro-Czechoslovak Mixed Arbitral Tribunal". bibliographical references given should be supplemented by t h e
314
Paris Appeals Court, Judgement of 19 February 1968, addition of D . Bardonnet's well documented work, published later
(op. cit.),
Journal du droit international (Paris), 95th year, N o . 2, April- and entitled La succession d'Etats a Madagascar...
passim, and particularly p p . 178-205.
June 1968, p . 336.
72
Yearbook of the International Law Commission, 1973, vol. II
of religious edifices by the successor State. The hospital
had been built by British missionaries on the basis of a
deed of concession by Queen Ranavalo, who was entitled
to retain ownership of the entire property on the date
of cessation of the hospital's activities. When the French
protectorate was replaced by annexation in 1896, the
concession was terminated by General Gallieni, who
requisitioned the hospital. The British Law Officers of
the Crown gave two opinions, on 22 March 1897 and
2 February 1898, criticizing the French position, which
remained unchanged. The two Parliaments, the two
Governments and the English and Franco-Malagasy
courts hotly debated the issue, which culminated in the
award of a very meagre amount of compensation to the
dispossessed missions.
(14) The status of the "habous property" and the property
of various religious foundations in Algeria was not
respected by the successor State in 1830.320 Similar
property was treated in the same way when Libya was
annexed by Italy. The Libyan religious foundations
recovered their property in 1950 and the buildings used
in connexion with non-Moslem public worship were
transferred by Italy to the respective religious communities.
(15) Similarly, the various treaties of cession of Ottoman
Empire territory, particularly to Bulgaria and Greece
in the nineteenth or early twentieth century did not
alway respect the nature of the habous property or
awqdf as understood by the municipal law of the ceding
State. 321 Thus the Protocol between Greece and Turkey
signed at the Conference held in London on 16 June
1830 322 abolished the awqdf without compensation in
the territories occupied by the Greek army and transferred
to Greece the property of the State and Moslem foundations in the other territories which were to pass to Greece.
Only the privately-owned awqdf were respected.323
C. Property of the State in foundations
(16) There are semi-public foundations of which the
State owns a share of the capital. These are usually
cultural or scientific foundations or schools and institutes.
According to paragraph 2 of article 40, the share of the
predecessor State is transferred to the successor State or
States. There have been cases, however, in which the
predecessor State kept a share of the property of these
foundations. For example when Indo-China became
independent, the property belonging to the Ecole francaise d'ExtrSme-Orient became inalienable common
property of the three associated States and France. The
320
See Yearbook...l970, vol. II, p. 138, document A/CN.4/226,
part two, paragraph 19 of the commentary to article 1.
321
See M . Costes, Des cessions de terrltoires envisagees dans leur
principe et dans leurs effets relatifs au changement de souverainete
et de nationalite (thesis) (Paris, Riviere, 1914), pp. 77-91.
322
British and Foreign State Papers, 1830-1831 (London,
Ridgway, 1830), vol. 18, p . 600.
323
See also the Greek-Turkish Convention of 2 July 1881
concerning the final demarcation of the frontiers between the two
countries ( G . F . de Martens, ed., Nouveau Recueil general de
traites (Gottingen, Dieterich, 1883), 2nd series, vol. VIII, p. 2)
which left the successor State free to determine, in accordance
with its laws a n d the requirements of public policy, the regulations
governing the few remaining awqdf, the others having been abolished.
same was true of the property belonging to the Pasteur
Institute in Indo-China.
(17) Mention may be made in passing—although this
has nothing to do with property of the State in foundations—of two cases where the predecessor State kept
the assets of such foundations either temporarily or
permanently. The violent conditions in which Israel was
established led the United Kingdom, which was the
mandatory Power in Palestine, to take such measures.
Consequently, the Rockefeller Endowment Found,
intended for the Archaeological Museum of Palestine,
remained in the possession of the United Kingdom
Government pending a decision by the Foreign Office.324
An agreement between Jordan and the United Kingdom
also allowed half of the assets of a foundation to be
unblocked for the benefit of Jordan after several years. 325
Article 7 of this Agreement provided that
The Government of the United Kingdom shall, within the terms
of the bequest of the late Sir Ellis Khadoorie, make available to
the Government of Jordan one-half of the balance of that bequest,
which balance amounts to £86,237, and one-half of the accrued
interest on the said balance, to be used for the purposes of the
Khadoorie Agricultural School in Jordan.328
D.
The property of the Moslem Institute
and of the Mosque in Paris
(18) As a sequel to these developments, it may be useful
to provide some information concerning the case of the
foundation known as the "Society of the Habous and
Holy Places of Islam", which was established at Algiers
before Algeria became independent and had built and
administered a Moslem Institute and Mosque in Paris.
This is a case of property belonging to a religious foundation and situated outside the territory affected by the
change of sovereignty.
(19) The "Society of the Habous and Holy Places of
Islam" was established at Algiers on 16 February 1917 by
a deed deposited with the hanifite cadi of Algiers. The
Society, whose headquarters were situated in the Great
Mosque at Algiers, had decided to purchase two buildings
at Mecca and Medina for the benefit of needy North
and West African pilgrims.
On 24 December 1921 the Society was converted into
an association under French law subject to the French
Act of 1901 on associations, and registered as such with
the Prefecture of Algiers. The Society then decided to
build and establish a Mosque and a Moslem Institute
in Paris and, for that purpose, received a sum of
500,000 francs from the French Government, a grant
from the Municipal Council of Paris for the purchase
324
Cf. I. Paenson, op. cit., p . 74.
Agreement between the Government of the United Kingdom
of Great Britain and Northern Irland and the Govemement of the
Hashemite Kingdom of Jordan for the settlement of financial
matters outstanding as a result of the termination of the mandate
for Palestine, signed at Amman on 1 M a y 1951 (United Nations,
Treaty Series, vol. 117, p . 19).
326
According to a n agreement of 13 March 1950 between the
United Kingdom and Israel, the other half of the Khadoorie
bequest was handed over to Israel.
325
Succession of States in respect of matters other than treaties
of land and, from Algeria, Morocco, Tunisia and other
African countries annual subsidies of which that from
Algeria was by far the most regularly paid.
(20) After the establishment of the Mosque and the
Moslem Institute, an Algerian was always appointed
by the Administrative Board of the Society to represent
it in Paris, and to be in charge of the administration of
the two Parisian institutions. But during the Algerian
war, Mr. Guy Mollet, the Prime Minister, replaced the
Administrative Board of the Society and, by a decree of
18 May 1957, appointed an Algerian—in the purely
ethnic sense of the word—as director of the Mosque and
the Institute. On 16 January 1958, this director had the
Society's statutes revised, thus annulling the constituent
act of the foundation and, two weeks before the ceasefire in Algeria, had the Society's headquarters transferred
from Algiers to Paris on 2 March 1962.
(21) On 13 February 1963 the Administrative Tribunal of
Paris, on the grounds of irregularity, annulled Mr. Guy
Mollet's decision concerning the appointment of the
director of the Mosque and the Institute. The Conseil
d'Etat, by a decision dated 8 November 1963,327 confirmed
the unlawful nature of the Prime Minister's action.
However the director continued to head the two religious
institutions, availing himself of a decision allegedly
adopted by a "general meeting" of the Society after he had
amended the Society's statutes.
327
France, Conseil d'Etat, Recueil des decisions du Conseil
d'Etat (Paris), November-December 1963, para. 378.
73
(22) Immediately after Algeria acquired independence,
the French Government, to which the matter had been
referred by the Algerian authorities, informed those
authorities that, in its opinion, the Society could no
longer claim to have a legal existence and that its property,
having escheated, should be subject to jus soli. The Algerian Government, on the other hand, contended that the
Society still existed at Algiers and that its rights in respect
of the Mosque and the Institute had not been extinguished.
The French Government then proposed, in 1963, that
the property of the Society, which in its opinion was
defunct, should be handed over to a new association to
be established at Algiers with Moroccan and Tunisian
participation.
(23) Subsequently the Seine Court of First Instance, by
a decision handed down on 24 May 1967, ruled that
(a) the Society was a foreign one and that, according to
article 21 of the 1901 Act on associations, its headquarters
were still at Algiers, and (b) that the Society had not
acquired, from the Algerian Government, the capacity
to be a party to legal proceedings.
(24) Consultations are still in progress between the
French Government on the one hand, and the Algerian,
Tunisian and Moroccan Governments on the other hand,
with a view to settling the matter definitively by relieving
the present director of his duties, since he was appointed
under a decree considered to be irregular, and handing
over the property of the two Parisian institutions to the
Maghrebian authorities.